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THE EVOLUTION OF 
GOVERNMENTS AND LAWS 



EXHIBITING THE GOVERNMENTAL STRUCTURES 

OF ANCIENT AND MODERN STATES, THEIR 

GROWTH AND DECAY AND THE LEADING 

PRINCIPLES OF THEIR LAWS 



BY 

STEPHEN HALEY ALLEN 



" Quis custodiet ipsos c us t odes ? " 
" Mens, et animus y et consilium et sententia civitatis, posita est in legibus." 



VOL. I 



PRINCETON 

PRINCETON UNIVERSITY PRESS 

Sales Agent for the Author 






Copyright, 1916, 1922,, by 
Stephen Haley Allen 

Published August, 1916 
Revised Edition, August, 1922 

IX 

€&> 38 




CONTENTS 

INTRODUCTION.— Parental Authority. Public Reg- 
ulation of Private Morals. Public Regulation of 
the Family. Crimes and Punishments. Legislative 
Morality. Legislative Expedients. Judicial Func- 
tions. Executive Functions. Checks and Bal- 
ances of Governmental Powers. General Pur- 
poses of Government. 

chapter 



I. 


Unorganized Tribes. 


II. 


Tribal Organizations and Simple Despotisms. 


III. 


Pacific Islands. 


IV. 


Mexico. 


V. 


Peru. 


VI. 


Egypt. 


VII. 


Chaldea, Babylonia, Judea and Persia. 


VIII. 


Arabia. 


IX. 


India. 


X. 


China. 


XI. 


Japan. 


XII. 


Turkey. 


XIII. 


Greece. 


XIV. 


Rome. 


XV. 


Mediaeval Europe. 


XVI. 


Russia. 


XVII. 


Italy. 


XVIII. 


Spain and Portugal. 


XIX. 


Denmark, Sweden and Norway. 


XX. 


Germany, Austria, Hungary and Poland. 


XXI. 


Holland and Belgium. 


XXII. 


Switzerland. 


XXIII. 


France. 


XXIV. 


The British Empire. 



XXV. United States. 

XXVI. Modern Mexico, Central and South American 
States. 

GENERALIZATIONS.— Poverty of History. Methods 
of Acquiring and Conferring Political Power. 
Methods and Principles Applicable to the Se- 
lection of Public Officers. Direct Legislation. 
Initiative and Referendum. Changes in the Forms 
and Functions of Governments. Modern European 
Constitutions. Methods of Originating Laws. 
Purposes of Laws and Motives Prompting their 
Enactment. Punishment. Taxation. Personal 
Status. Family Relations. Land Laws. Inheri- 
tance. Contracts. Combinations. The Necessity 
for and Value of Human Laws. Voluntary Ob- 
servance and Governmental Enforcement of Laws. 

APPENDIX 

Code of Hammurabi. — Babylon. 

Laws of XII Tables. — Rome. 

Code of Manu. — India. 

Assyrian Law Code. 

Institutes of Justinian. 

Penal Code of China. 

Civil Code of France. 

Civil Code of Germany. 

Magna Charta. — England. 

Constitution of Poland. 

Constitution of Czecho-Slovakia. 

Constitution of the United States. 

Constitution of the German Republic. 



INTRODUCTION 

The wide research and long study preceding and attending 
the preparation of this work have been prosecuted for the 
purpose of extracting from the recorded experiences of the 
various people of the earth, in the governments they have 
had and the laws under which they have lived, such broad and 
general principles as may be helpful in the work of framing 
constitutions and formulating laws. Neither government- 
building nor law-making is a science. That the moral law 
has some force and application is generally admitted, but 
that it may be violated, when deemed expedient to do so, is 
constantly asserted in practice. What is the moral law, and 
where may its precepts be found? Perhaps most men will 
answer, in the sacred books. But it may again be asked, 
what books are sacred? To this the Brahman will unhesi- 
tatingly answer, the Vedas and the code of Manu; the Bud- 
dhist, the Greater or the Lesser Vehicle, according to his sect ; 
the Mohammedan, the Koran ; the Jew, the Talmud ; the Par- 
see, the Zend-Avesta; the Christian, the Bible, and so on 
through less widely accepted codes. While much of agree- 
ment can be found in all of them, there are direct antagon- 
isms of the utmost importance. 

Mohammed taught war and commanded the propagation 
of the word by the sword. Christ forbade it, yet is recorded 
as having said, "I came not to send peace but a sword." 
Manu taught caste and inequality among men ; Buddha equal- 
ity. All the Asiatic codes, including the Christian, counten- 
ance slavery, which the moral sense of Europe and America 
now condemns. All nations resort to war; yet its immorality 
is its most apparent characteristic. Every normal person 
feels a capacity for determining the moral quality of the acts 
of himself and of others, yet varying capacity, education and 
surroundings lead to diverse judgments on many subjects. A 
definition of the moral law as the rule determining right from 



2 EVOLUTION OF GOVERNMENTS AND LAWS 

wrong merely leaves the question unanswered. Nevertheless 
it would seem self-evident that there are moral principles of 
universal application, binding alike on all men, by which the 
quality of human conduct may be tested. They attend and 
inhere in our existence. The fact that any such principle is 
not generally perceived or followed does not prove its non- 
existence. 

Many natural laws have remained concealed from man 
through all the ages, and moral laws are natural laws. The 
progress of the age is measured by the discovery and applica- 
tion of natural laws to science and art. Perhaps a fair defi- 
nition of the moral law would be, the Divine, the natural law, 
which fixes the duty of man to himself, to other human beings 
and to all living creatures. A man living in complete isola- 
tion from all other human beings would owe himself the 
duty to appropriate to himself everything that would con- 
tribute to his welfare, comfort and highest development, tak- 
ing food, clothing and shelter wherever he could get the best. 
But civilized man does not live in isolation. His duty to 
himself continues, but always subject to the limitations re- 
sulting from the rights of others. A duty and corresponding 
right attaches to each one to provide for himself and the 
right of each becomes a limitation on that of every other 
one. This conflict of interest and loss of right to freely 
appropriate whatever is at hand is more than compensated by 
the advantages of combined effort and mutual help. It is 
clear that the moral law applies to all alike and commands a 
just sharing among the people of all the things that nature 
provides as well as of the fruits of their united efforts. In the 
division of the bounties of nature equality appears to be the 
natural law, but equality of opportunity to take every kind 
of natural product and resource in a densely peopled world is 
impossible. Human activities are largely applied to the search 
for and gathering of useful things from the surface of the 
earth and the mines beneath. The value of the things gained 
by these activities depends in great measure on the labor ex- 
pended in acquiring them. There is difficulty in separating 
the added labor value from that of the thine* as it was before 



INTRODUCTION 3 

man touched it. Combination of effort for common ends 
implies the assignment to each of a special part of the work. 
Specialization requires the assignment to each of the task 
for which he is best qualified. Division of labor calls for 
the exchange of products. Advancing civilization is attended 
by increased combination of effort, division of labor and spe- 
cialization of occupation. Amid the complexity of modern 
business conditions the applicability of fundamental moral 
principles to the rights and duties of each member of society 
is obscured and often lost to view. In the division of labor 
inequalities of burden inevitably arise. In the distribution of 
the benefits of combined effort equality of share to each is 
difficult of attainment, if not impossible. The necessity for 
direction and leadership implies a degree of mastery, which 
may be carried so far as to become oppression. Out of a 
disregard of duty and of the rights of others come oppres- 
sion, strife and crime. In an ideal state the law would op- 
pose its force to all unsocial and immoral conduct. To give 
positive sanction to conduct that violates ethical principles is 
inexcusable. Practical men do not expect an ideal system of 
laws completely enforced, but a nearer and nearer approxi- 
mation to the moral law. 

Let us notice a few of the customs that have long been 
sanctioned by the laws of great nations. In China the in- 
feriority and servitude of the females to the males lies at 
the foundation of the whole social system. The wife and 
daughter may be abused, overworked and mistreated by the 
husband and father almost at will. The power of the father 
over his sons is also very great. Prior to the late revolution 
the Imperial Clan and descendants of Confucius constituted 
privileged classes and were supported from the taxes gath- 
ered from the toiling multitude. 

In India, from remote ages, the rigid rules of caste have 
kept the lower orders in enforced ignorance and servitude to 
the ruling classes. Denial of the right to engage in any busi- 
ness or calling, other than those assigned to his caste, has 
deprived the members of all castes of that personal freedom 
of effort so essential to high development. Rank injustice 



4 EVOLUTION OF GOVERNMENTS AND LAWS 

and disregard of natural rights lie at the base of the whole 
system. 

In Mohammedan countries the Koran's precepts allow poly- 
gamy, and far worse than this, command the propagation of 
religion by war, the most immoral of all concerted efforts of 
men. The errors and falsehoods of the Koran are taught as 
divine revelation, and all inquiry tending to replace them with 
truth is stifled. 

Throughout all the history of Rome slavery was recognized 
and the machinery of the government was employed to en- 
force the dominion of the masters. Much of the learning of 
the great jurists consists in rules governing the relations of 
masters and their slaves, and determining the status of persons 
as citizens, coloni, freedmen and slaves. Even in our own 
land, within the memory of the writer and those of his genera- 
tion, slavery was the most important institution in nearly one 
half of the Republic. No law can be a greater departure from 
the moral law than that which sanctions slavery and allows one 
man to compel another to serve him according to his arbitrary 
will and take all the proceeds of his labor to use as he pleases. 
Nothing can better illustrate the tendency to depart from the 
moral law in framing human laws than the history of the law 
of slavery. The feudal system of land tenure after the decline 
of the Roman Empire worked out results similar to slavery. 

Without stopping at this time to apply moral tests to the 
leading principles of modern law in Europe and America, 
let us consider what influences produced the laws above men- 
tioned. Clearly the authors of such laws were not guided in 
their work by any moral principles, for the injustice of them 
is obvious. The universal motive has been advantage for 
the ruling class, and the excuse for taking the advantage has 
been expediency or necessity. During periods of war or civil 
discord men seek to assure their own safety by the destruction 
of their enemies. The victors in the contest seldom give nice 
consideration to moral rules in imposing term on the van- 
quished. Primitive tribes either kill or enslave their captives. 
Slavery has its root in war. Greeks and Romans, though ad- 



INTRODUCTION 5 

mitting the immorality of slavery, enslaved their captives and 
always maintained the dominion of the masters by law. In 
the conquest of India by the Aryan invaders the subjugated 
natives were assigned to a servile class. The system of castes 
arose from the organization of the priestly and military orders 
and the enslavement of the native races. The victor in a 
fierce conflict often considered himself humane to accord life 
to his enemy on terms of perpetual service. The institution 
of slavery was never originated by a deliberative body of 
law-makers, nor by any great autocrat acting merely as a law- 
giver. Where the institution has existed, law-makers have 
undertaken to apply some moral rules to its incidents, leav- 
ing its fundamental vice undisturbed. We shall find as we 
proceed that the habit of accepting immoral systems and then 
attempting «to apply moral principles to their incidents is uni- 
versal. The enslavement of the recently overpowered and 
disarmed enemy appears in very different light from that of 
the child born in slavery. In the latter case the law of in- 
heritance of condition is required to pass mastery from the 
captor to his son and the status of a slave from the captive 
to his child. 

Under the feudal system conquest of land carried with it 
rulership over the occupants of it, and a theory of ownership 
of the face of the earth was made to give in effect ownership 
of the people inhabiting it. This mastery was mitigated in 
time by rules governing the relations of lords and tenants, 
and out of these rules came the early English laws of real 
property. It cannot be truthfully said that the idea of abso- 
lute ownership of the face of the earth is an outgrowth of 
war. It seems rather to have arisen from continued occu- 
pancy by successive generations of families and tribes. The 
influence of habit, education and " environment, in moulding 
opinions on all questions of political science, is quite as 
marked as in religion, fashion and industrial habits. Noth- 
ing is more natural or more common than to base reasoning 
on the fundamental principles of existing institutions, and to 
assume that the existing system is in its main features a 
natural and necessary one. Thus in Roman jurisprudence 



6 EVOLUTION OF GOVERNMENTS AND LAWS 

patria potestas, slavery and inheritance of personal status and 
of property were foundations which endured a thousand years. 
So also in India caste is the key to all judicial research, and in 
China paternal authority and filial piety. Following the 
American revolution individual liberty and restriction of the 
powers of government were the leading ideas of the revolu- 
tionists concerning social organization. The founders of the 
United States were close students of the relations of the state 
to its citizens, but did not concern themselves deeply with the 
laws governing the relations of man to man, or attempt radi- 
cal changes in the laws relating to property. Even so immoral 
a business as the trade in African slaves was not prohibited at 
once, and slavery was recognized as lawful though immoral. 
Freedom from the unnecessary restraints of government was 
their great desideratum. The word liberty is given a great 
variety of meanings. As expressive of the freedom of action 
which is permissible to a person it must necessarily mean such 
freedom as is compatible with equal freedom for all others. 
Where many persons live in close proximity to each other, 
complete freedom of action' in each with full protection 
against the acts of others is impossible. The moral law im- 
poses its restraints, and not only denies all liberty to wrong 
or injure others, but enjoins positive duties toward them in 
endless variety resulting from the interdependence of man 
and his fellows. No system of laws has ever yet been worked 
out on even a professed adherence to fundamental moral 
principles. 

Most of the confusion of thought and defective reasoning 
of those who speak and write on the subject of political science 
arise from a failure to observe the difference between ques- 
tions of morality and questions of expediency and the limi- 
tations on expediency imposed by morality. While it is 
impossible to draw sharp lines of separation, it is not difficult 
to perceive that each has its legitimate field, and that the 
science of law, when law-making becomes a science, must rest 
on the application of moral principles to the determination of 
the rights of men and their conduct in life and an intelligent 
understanding of the principles which affect the selection of 



INTRODUCTION 7 

expedients for the accomplishment of moral ends. Real 
progress and improvement in social conditions follow the 
promulgation of the moral law in such form that it is learned, 
understood and accepted as authentic by the multitude. Most 
great teachers of it have given their rules a religious sanction. 
It is entirely logical to do so, for the moral laws which should 
govern the relations of men must emanate from the overruling 
power that gives life. Moses, Confucius, Gautama, Christ 
and Mohammed, have each left a deeper and more enduring 
impression on the world than all the conquerors who have 
terrorized the earth combined. The fact that error is com- 
bined with truth in some of their teachings does not disprove 
the divinity of the moral law. It may prove the existence of 
the human element in the teacher and his liability to err. The 
work of these great teachers has been truly constructive, while 
that of the great warriors has been the organization of forces 
and the use of them for purposes of destruction and mastery. 
Simple moral truths of universal application lie at the base 
of every great system of religion. The beliefs and ceremonials 
are the shell and husks, ostensibly designed to protect and 
nourish the kernels of truth, yet in fact concealing them. It 
is easily perceived that moral principles are eternal truths, 
established by and according with the power that rules the 
universe. They are the same everywhere and under all cir- 
cumstances. The imaginings as to the unknowable, the 
priestly establishments, the creeds and religious ceremonials, 
human inventions, are changed and moulded to suit changing 
tastes and inclinations. 

Departure from the moral law in human conduct is due 
either to unreasoning impulse or views of expediency, or both 
combined. The rules of morality and expediency must of 
necessity be identical as to acts or conduct affecting the actor 
alone, for it is right to do what best promotes his permanent 
welfare, and it is also expedient. The departure from the 
true course in such matters is usually due to a desire for some 
excessive temporary pleasure, to be compensated later by cor- 
responding pain or depression, or the gratification of some 
particular desire at the expense of others more laudable. 



8 EVOLUTION OF GpVERNMENTS AND LAWS 

There is full liberty of choice of food, clothing, ornament, 
labor, recreations, fields of inquiry, aims in life, ideals, and 
of every activity so far as each of them is equally consistent 
with human welfare. 

In conduct affecting others expediency is the justification 
which the wrongdoer makes to himself for the greatest de- 
parture from moral rectitude. Murder, robbery, theft, forg- 
ery and every other crime and intentional wrong to others, 
have their root in a belief or impression of the expediency of 
the act. Expediency is the justification claimed for all crafty 
schemes through which men gain riches and power to the 
detriment of others. Expediency is the excuse for falsehood 
and cowardly neglect of duty. The inability of a man to 
protect himself and those dependent on him by strictly moral 
means makes room for resort to immoral acts, deemed neces- 
sary. It is immoral to kill or maim another, yet deemed 
justifiable in self-defense or to protect one's family. Though 
expediency prompts to all kinds of immoral conduct, it has its 
legitimate field of vast extent. There are many different ways 
of accomplishing a desirable end by moral methods. The 
choice and use of expedients are the most common employ- 
ments of the mind. The moral law fixes limitations. 
Expediency may freely lead in every path that touches no for- 
bidden ground. The diversity of human accomplishments is 
due to choice of expedients and ends to be accomplished. 
Choice and use of moral expedients for moral ends are the true 
field of liberty. Choice of food, clothing, habitation, furnish- 
ings, labor, repose, recreation, amusement, associates, literature 
and moral purposes to be accomplished, affords an illimit- 
able field for selection of activities. One may freely follow the 
dictates of his own tastes and inclinations wherever full lib- 
erty of action is permissible. 

Parental Authority 

Whatever the social state, from the lowest savages to the 
most cultured nations, parental authority over young children 
is recognized everywhere. The parental relation is established 
by the divine law of reproduction. Among the most degraded 



INTRODUCTION 9 

savages the relation of the mother to her child is obvious, 
while that of the father is often- obscure or wholly unknown. 
All the burdens connected with rearing the young are borne 
by the mothers, who are often enslaved and oppressed by the 
males with whom they come in contact. The first well defined 
step in the advancement of civilization is the establishment of 
family relations with fathers recognizing definite relations to 
their wives and children. As society improves, the purity and 
strength of domestic ties increase. The happiness of each 
person and the welfare of the state are dependent everywhere 
on the measure of love, unselfishness and devotion to duty 
prevailing in the homes. To rear and protect their offspring, 
parents must direct, restrain and instruct them. The ruler- 
ship is arbitrary in the sense that the parent acts according 
to circumstances on his own judgment and without restraint 
from fixed rules. The protection of the child from mistreat- 
ment lies in the love of the parent, who finds joy in the 
comfort and happiness of the child and pain in its suffering. 
While anger and hatred are sometimes exhibited by par- 
ents, pity and love almost invariably temper the blows and 
quickly restore the bond of sympathy. No other shield against 
harm could possibly be found of anything like the strength 
and efficiency of parental love. While parents have full 
power to direct and restrain,. they must of necessity accord to 
their children an ever increasing measure of liberty of action 
commensurate with their expanding strength and mental 
powers. Lessons in self-reliance are necessary and may be 
taught to the very young with advantage. It is often better 
to let the little child suffer the punishment nature imposes for 
its act than to restrain it. The pain caused by heat and cold 
can only be clearly understood by experiencing it. Pain is a 
sentinel that warns of immediate danger, and through some 
pain the child must learn what to shun. What dangers and 
sufferings the child should be subjected to must depend in 
great measure on the care and instruction the parents can give 
it. The child has its rights and is entitled to its due measure 
of liberty. Of the limitations of these the parents of necessity 
must judge from time to time, till the capacity of the child to 



io EVOLUTION OF GOVERNMENTS AND LAWS 

govern himself is approximately equal to that of the parent 
to govern him. Nature fails to indicate a definite size or age 
at which this capacity first comes into existence. In Rome 
the power of the father over his son continued throughout life 
and over his daughter so long as she remained under his hand, 
that is till she married and was transferred to the family of 
her husband. The patriarchal system was a very natural de- 
velopment in those parts of Asia which were inhabited by a 
settled population, living under peaceful conditions and sup- 
porting themselves from agriculture or pastoral pursuits. The 
father of the family was the natural head of it, and the family 
included grandchildren, as well as children, and all other 
members of the household. Polygamy in places greatly ex- 
tended the membership of the family and made the head of it 
a ruler over a community. To people reared under such con- 
ditions a paternal government would appear to be the only 
natural one. Among savage tribes like the American Indians 
and the lower Africans frequent wars disrupted families. 
The leadership of war parties was taken by the strong and 
vigorous young men, and their feats in arms gave them in- 
fluence in the councils of the tribe. The elders were listened 
to in council, but lacked the requisite strength and endurance 
for commanding war parties. The organization of such war- 
like tribes was democratic, and combinations of the Indian 
tribes mostly took the form of confederacies. 

In the Asiatic monarchies the king assumed authority over 
all the people similar to that exercised by the father over his 
family. This power was arbitrary and without limitation. 
The theory of such a government is false, because the love, 
which is such an active and constant monitor in the home and 
furnishes such a safeguard against oppression, is wanting in 
the kingdom. The love of even the best of kings for their 
subjects is largely theoretical, and in the nature of things 
cannot be the same in quality as that of the father for his 
own family. The restraining force being absent, tyranny of 
course results. In a populous state warm sympathy for and 
full appreciation of the peculiarities of each citizen by the 
sovereign is impossible. 



INTRODUCTION n 

Public Regulation of Private Morals 
Ought the state to concern itself with private morals? That 
the state, which is but the aggregate of all the people in it, 
is deeply interested in the morals of every private person in 
it is clear, but that the public can interfere with the conduct 
of a person which concerns him alone with advantage either 
to him or to the state is not so evident. The Greeks deemed 
the culture of physical strength and beauty of form a matter 
of public concern as well as mental and moral training. The 
code of Manu deals minutely with many habits of body and 
mind and private acts affecting the soul, and prescribes pen- 
ances and expiations for infractions of its rules. It seeks to 
direct the soul in its struggle to gain mastery over the body 
and all evil propensities of body and mind. Religion and 
education are the forces employed to guard against all secret 
violations of its commands. From early youth the people 
are taught that the law is self-enforcing and that every in- 
fraction of it is followed by certain and adequate punishment. 
In China mourning for the dead is deemed a matter of prime 
importance, and is enforced in the prescribed form under 
severe penalties. While the Book of Rites deals mainly with 
forms of intercourse between different persons, it also en- 
joins many observances affecting the individual alone. Mo- 
hammed strictly commanded ablutions, the morning and 
evening prayer, and other personal observances tending to 
cleanliness and health as well as requiring the observance of 
religious forms. The Church of Rome also takes cognizance 
of private morals and requires confession of secret sins and 
imposes penances for the expiation of them. Other Christian 
churches also deal with secret acts affecting the actor alone. 
The prevailing doctrine in America and the more advanced 
states of Europe is that the citizen is accountable to himself 
and the Supreme Being only for his private morals and care 
of his personal welfare. This doctrine is adopted both on the 
ground of rightful liberty and of the inexpediency of state 
regulation of purely personal concerns. It must not be in- 
ferred however that this non-interference by the government 



12 EVOLUTION OF GOVERNMENTS AND LAWS 

indicates indifference on the subject, or an entire lack of 
public influence in the direction of the best private morality. 
Through the public schools educational influences, potent and 
far-reaching", are brought to bear. By encouragement to 
acquire knowledge, to love truth and form and follow high 
ideals, the state leads rather than drives to purity of private 
morals. 

Public Regulation of the Family 

Should the state undertake to regulate and improve the re- 
lation of members of the family to each other? That these 
are of the highest interest to the public does not admit of 
doubt. The citizens constituting the state are reared in the 
homes and started in life with such opinions, habits and pur- 
poses as home influences have produced. Vicious and im- 
moral parents usually rear children with similar character. 
On the other hand lofty purposes and upright conduct are 
best promoted Dy the lessons of the domestic fireside. From 
the home atmosphere of love, devotion to the welfare of each 
other and kindness toward all mankind radiate those warm 
and vitalizing influences that stimulate the growth of all that 
is good on earth. Viewing the importance of preventing the 
propagation of evil and of encouraging the growth of virtue, 
may the state safely leave the homes to be ruled as the mem- 
bers of the household deem best? This presents the practical 
question, where can better influences be found than those 
which spring spontaneously from matrimonial unions. The 
state concerns itself with the foundation of the household by 
marriage. Only in the lowest and most degraded tribes is 
promiscuous sexual intercourse tolerated. Though polygamy 
is lawful among more than two-thirds of the people of the 
earth, there can be no doubt of the superior morality of the 
union of the single pair. This is indicated by the near ap- 
proximation in the numbers of each sex born into the world 
and is recognized even in the countries where polygamy is 
allowed, for in them monogamy is the rule and polygamy the 
exception. A few tribes allow plurality of husbands, but this 
system is regarded with almost universal disfavor. 



INTRODUCTION 13 

There is great diversity in marriage ceremonies, but these 
are of relatively small concern. It is far more important to 
determine who may intermarry. Restrictions preventing the 
lower classes from intermarrying with the higher are most 
marked in India, and are common with the princely houses of 
Europe. These are designed to prevent the upper from being 
contaminated with the lower orders. 

The family being established by lawful marriage its govern- 
ment is usually left almost entirely to its own members. The 
theory of domestic rulership varies from the patria potestas 
of the Romans, with power of life and death over all mem- 
bers of the household, including adult children and their 
wives and their offspring, to that of equal rights of father 
and mother over minor children and complete emancipation of 
the children at the legal age of majority. The right to punish 
children is universally conceded to parents, subject in ad- 
vanced states to the limitation that the punishment must not 
be cruel or excessive. When it is considered that the citizens 
constituting the state are born and reared in these households, 
the vast importance of domestic morals is apparent. If the 
state can improve them by regulation it is desirable to do so, 
but before the attempt is made it must be found that the 
moral purposes of the state, as an organized acting force, are 
better than those generally dominating in the homes. It 
seems clear that this cannot be safely asserted, even in the 
best governed states, but that the reverse is generally true, 
and that the impulses which advance public standards origi- 
nate in the homes. This of course is most apparent in dem- 
ocracies and republics, but domestic morals exert a profound 
influence, even under the most despotic governments. In this 
connection it must be noticed that there is as wide a difference 
in the character of households as of persons. Virtue and all 
noble impulses germinate in the homes, but so also does much 
vice. Moral as well as physical qualities usually, though not 
universally pass by inheritance from parent to child. The 
ancient Spartans encouraged propagation by the strongest 
and most perfect physical specimens, and exposed the defec- 
tive infants. They however grossly underrated the factor of 



14 EVOLUTION OF GOVERNMENTS AND LAWS 

love and devotion of husband and wife to each other, so ab- 
solutely essential to the highest development of the moral 
character of the offspring. Where husband and wife are 
normally healthy physically and morally there is little or no 
need of state interference with their domestic affairs, but 
may not society interfere and protect itself from the conse- 
quences of those unions that are productive of vicious and 
defective children? Ought the criminal, the insane and the 
imbecile to be allowed to marry and multiply their kind ? No 
intelligent stock-raiser allows the propagation of defectives 
among his flocks and herds. He takes the utmost care to 
eliminate them, and understands quite well how to improve 
the breeds of horses, cattle, hogs and fowls. The wise farmer 
carefully selects the seed for his fields, excluding every de- 
fective kernel as far as practicable. Neither among domestic 
animals nor field crops does he hope for good results from 
bad seed. Why may not society exercise the same care and 
intelligence with reference to the propagation of the human 
race that it does over the lower animals? To answer this 
question we have first to determine whether it is morally right 
to protect future generations from criminals and defectives 
by preventing their propagation; second, whether it is ex- 
pedient to do so, and third, what system can be adopted and 
what are the limitations of the rightful exercise of the power. 
In a household which starts from a well mated, healthy 
and congenial pair, perfect liberty to live lives of devotion 
to each other and to their children is recognized as of the 
highest value. So sensitive and delicate are the adjustments 
of the affections that no one without the circle can fully ap- 
preciate or understand them. All such pairs realize their 
responsibility for their own welfare and shrink from all out- 
side interference. The state generally recognizes its inability 
to add to domestic happiness, and interferes only in those 
cases where one or both parents have been grossly derelict in 
duty or children are incorrigible. The moral right to do- 
mestic privacy and freedom is generally conceded, and the 
inexpediency of state interference with domestic relations 
under normal conditions is recognized. 



INTRODUCTION 15 

In the treatment of children parents act according to their 
own dispositions and capacities and those of their children. 
The uplifting force is love and devotion to their welfare. The 
happiest homes are doubtless those where the parents are able 
to lead their children in the right paths by reason; where all 
good impulses are sympathetically encouraged and the ca- 
pacity for self-restraint developed as early in life and as 
rapidly as possible. Where force is resorted to it should al- 
ways be as a temporary expedient to overcome resistance of 
authority. Its educational value can be no more than to incul- 
cate the lesson that resistance is futile, and it is therefore 
necessary to make its use accomplish the desired result. It 
may well be doubted whether beating, scolding or restraint of 
liberty, inflicted merely as punishment for disregard of duty, 
ever accomplishes a beneficial result. The problem is to 
arouse the impulses that lead to right conduct. Blows excite 
a spirit of resentment and angry words responding anger. 
The spirit manifested by the parent arouses its counterpart 
in the child. Fear of punishment tends to cowardice, resort 
to falsehood and deception to avoid the punishment, rather 
than to stimulate a wish to do the things the parent will ap- 
prove. The legitimate object of correction is improvement in 
the child, and this can only come by stimulating good im- 
pulses, convincing its reason, or awakening its perceptions 
of the moral quality of the act or duty involved, or leading 
it to see advantage or superior enjoyment in good conduct. 
It is often assumed that very young children can be ruled only 
by force. Adults are led by suggestion. The force of sug- 
gestion is most potent to the infant. The incapacity of the 
parents to lead by suggestion induces resort to force to drive 
the child in the desired direction or punishment after the act 
for misconduct. The primary need is that the parent be in- 
structed in the art of governing children. 

On no subject is the law more divergent than that of di- 
vorce. Even among the states of the American Union there 
is nothing like uniformity of rule on the subject. Theories 
vary all the way from allowing divorce at the pleasure of 
either party to denying it altogether, and the practices pre- 



16 EVOLUTION OF GOVERNMENTS AND LAWS 

vailing go nearly to these extremes. A decree of court is 
required in all the states, but in many of them it may be ob- 
tained for slight cause and under few restrictions. The He- 
brew law allowed the husband to divorce his wife at will, 
and Mohammed announced the same rule in substance. The 
objections to divorce do not appear so serious where there 
are no children of the union, but a child has claims on each 
parent for love, care and protection, and a right to a home 
with both father and mother in it, bound together by love. 
Parents of little children cannot divide the home without vio- 
lating the moral law. But when husband and wife find them- 
selves utterly unable to live together in harmony, what is to 
be done and what rule of public law can make adequate 
provision for the case? No decree of court or administrative 
process has ever been discovered that can compel kindness and 
affection. The moral rules applicable to the conduct of the 
parties are not difficult to perceive, but unless they voluntarily 
follow them, no external force can compel them to do so. 
By allowing a divorce the law sanctions the disruption of the 
family, by denying it an innocent party may be doomed to 
endure unbearable treatment. The obligation of the state to 
provide as far as practicable against unsuitable marriages and 
to make conditions as favorable to domestic happiness as 
possible may call for attention to many matters now neglected. 
The possibilities of improvements along these lines present a 
field too wide to be covered in this brief review. 

Crimes and Punishments 

The primary domestic function of a government, recog- 
nized in all ages in all countries is the preservation of order 
and protection of the citizens from violence and wrong other 
than such as the governing power and the sentiment of the 
people tolerate. In the most primitive states violence to the 
person is the prevailing form of crime, and retributive justice 
usually takes the form of vengeance inflicted by the injured 
party or his friends. For homicide the kinsman of the mur- 
dered man may kill the murderer. In some states provision 
has been made for the payment of blood money to appease 



INTRODUCTION 17 

the avenger, and for places of refuge into which the avenger 
may not follow. In the code of Hammurabi of Babylon, the 
Jewish and other ancient codes the lex talionis, wrong for 
wrong, was the rule of punishment; for any injury a corre- 
sponding injury to the wrong-doer. There is something in 
this simple rule that seems to appeal to the sense of justice 
of the child and of a great part of the grown people as well. 
To return blow for blow, when attacked, and to kill an as- 
sailant, when necessary to preserve one's own life is regarded 
as justifiable in the most enlightened states. Self-preserva- 
tion appears to be a natural right. Organized society goes 
farther than this and after the danger is past, the culprit 
overpowered and held securely, as a return and punishment 
for the wrong done, inflicts a corresponding wrong on him. 
In considering the general aspect of the administration of the 
criminal law in Christian states the first question to be con- 
sidered is, is it morally right in principle, second, is it the 
most expedient to promote the general welfare. Writers on 
political science are unable to agree on the theory of punish- 
ments. The primitive idea is to compensate crime with suf- 
fering, and deter the commission of like offenses by fear 
of like punishment. This view is still widely entertained. 
Another is that the state takes such measures as appear neces- 
sary to protect society from a repetition of .the offense, ab- 
staining from merely vindictive punishments. A third is that 
society owes a duty to the culprit, and should aid him in 
every way to overcome his unsocial propensities ; that the 
state has no moral right to inflict injury or pain on any 
human being for the mere purpose of punishment for any 
act or conduct ; that good will toward the culprit must prevail 
in his treatment, and his welfare and reformation be prime 
considerations. That the state has the moral right to do 
whatever is necessary to protect the people when the criminal 
openly violates the rights of others and forcibly resists the 
rightful exercise of private rights or public authority, and 
that he must be left in danger of injury while the struggle 
continues and cannot claim protection from the public against 
the immediate consequences of his own acts, appear evident. 



i8 EVOLUTION OF GOVERNMENTS AND LAWS 

But when the power of resistance of the criminal is overcome, 
what measure of duty does the state owe him? It cannot 
then do him harm on the plea of immediate necessity. Can 
there be a defenseless human being wholly without the pale 
of governmental care? May the state assume a permanently 
hostile attitude toward criminals as men, or is it morally 
bound to have the same concern for those who, because of 
innate defects or unfavorable environment, have committed 
crime, that it has for normal humanity? It is apparent that 
the infliction of the death penalty is not on the theory of 
conferring a benefit on the criminal. Confinement in jails and 
penitentiaries under needlessly rigorous conditions rarely has 
any tendency to reform, but on the contrary stimulates the 
study of crime, induces hateful and revengeful feelings, and 
at the end of the term turns out a more expert and hardened 
criminal. The view generally entertained is that the system 
followed tends to protect society from further wrongs by the 
criminal and also to deter others from like offenses by the fear 
of like punishment. So far as the criminal's own conduct 
is concerned experience abundantly proves that the protection 
of society ends with his confinement. Unless he goes out with 
better social purposes than he had when he went in, the public 
purpose has not been accomplished. It is at least doubtful 
whether cruelty has any tendency to convince him of the im- 
morality of the act for which he is punished. He will, how- 
ever, readily perceive the immorality of the excessive cruelty 
to himself, and hate those who inflict it on him. The state 
being responsible for his confinement; he quite naturally at- 
tributes all his suffering to the public and feels that society 
in general is his enemy. To put him out into society with 
such feelings is almost equivalent to an invitation to recom- 
pense himself as best he can at the expense of society for the 
wrongs done him. So far as the tendency to deter others 
from like offenses is concerned, severity of treatment in con- 
finement can have no effect unless known to the persons whose 
conduct it is desired to influence. This could only become 
generally effective by making the barbarities practiced gen- 
erally known, which of course the state and the prison offi- 
cials would be unwilling to do. 



INTRODUCTION 19 

The researches of modern criminologists disclose the ex- 
treme crudity of the penal codes of Europe and America, 
which yet appear far better than the ancient lex talionis or 
the Asiatic codes of modern times. Malicious murder, delib- 
erately committed, always produces a profound sensation of 
horror, usually accompanied by a general desire for speedy 
vengence on the murderer. Of such murders many are in- 
duced by a desire of revenge for some real or fancied injury. 
These are seldom if ever committed under normal mental 
conditions, for the normal state of the human mind is one of 
either indifference or good will toward others. The misan- 
thrope is such because he is abnormal from birth or made so 
by subsequent influences. The normal healthy person desires 
the welfare of others, and it is because of this general feeling 
that the community is shocked when a murder is committed. 
If all or a majority were misanthropes, they would feel 
pleasure rather than pain at the destruction of a human life 
and applaud rather than condemn the act of the murderer. 
The law now prohibits the friends and relatives of the mur- 
dered man from killing the murderer under the natural 
promptings of anger and resentment caused by the deed; but 
after trial and conviction, it requires a public officer, having 
no feeling in the case different from that of the general public, 
to put the murderer to death, deliberately, intentionally, and at 
a time and place appointed by the court in accordance with 
the law. In a large part of the cases the general summing up 
"of the matter is that the murderer has taken a human life to 
gratify his private desire for vengeance, and the public has 
taken his life to gratify a general desire of the people for 
vengeance. Hatred moved the murderer to commit the deed, 
and hatred of the crime, carried on to hatred of the human 
being who committed it, induces the public to execute the 
murderer. Not only is the public act similar to the private 
crime, but the motive inducing it is essentially the same. In 
morals then the punishment is wrongful as well as the crime. 

One of the cardinal doctrines of the criminal law is that 
the defendant must be tried for the particular offense with 
which he stands charged, and the inquiry be strictly limited 



20 EVOLUTION OF GOVERNMENTS AND LAWS 

to his guilt or innocence of that offense. It is not a century 
since people were executed in England for small larcenies and 
other minor offenses. The extreme penalty of death was in- 
flicted for the single act without reference to the general 
character and conduct of the culprit, or to his environment. 
It is apparent that organized society has no greater moral 
tight to harm a citizen merely to gratify the general desire 
for vengeance than a private person has. 

The whole system of harsh punishments rests on views of 
expediency for its justification. It is doubtless true that some 
people are deterred from crime by fear of punishment, but 
it is equally true that criminals usually rely on concealment 
of their crimes and escaping the punishment, whatever its 
severity. The moral tone of any state that punishes harshly 
is necessarily low. Reports of the hangings of criminals 
shock the finer sensibilities and teach lessons of hatred and 
disregard for human life. If the state is cruel and merciless 
why may not the private citizen be so too? The criminal in 
fact seldom weighs the punishment against the crime. He 
always expects to avoid conviction and escape the penalty, 
whatever it may be. Fines and forfeitures may deter from 
conduct having no moral turpitude, but prohibited by law, but 
have little influence on hardened criminals. The best justifi- 
cation that can be found for vindicitive punishments is that, 
the state has not sufficient intelligence and moral force to find 
better means for the execution of its laws. If laws prescribe 
punishment for their infraction and no other means of com- 
pelling obedience to them, then the punishment must be 
administered or the law is without force. The general senti- 
ment of mankind is strongly in favor of law enforcement, so 
vindictive punishments continue. 

Can expedients be found for the prevention of crime and 
the protection of society without the violation of the moral 
law by the state itself? Manifestly this question must be 
answered in the affirmative, yet perhaps no person is capable 
of giving a full and clear statement of the expedients which 
would fully accomplish the object. Parents find it necessary 
to study the peculiarities of their children and to adapt their 



INTRODUCTION 21 

corrections to these peculiarities. This however is of minor 
importance, for the secret of success in governing the young 
lies in earnest loving care, which instructs and leads the child 
to act for its own best interests and greatest joy, which gives 
liberty to choose where the question is only of expediency or 
taste, which makes clear the consequences of wrong-doing, 
I not in arbitrary human punishment, but as ensuing naturally 
and necessarily from the misconduct itself. It is by leading 
the child to a clear understanding of the advantages of good 
conduct, and by instilling lofty sentiments of virtue, truth- 
fulness and kindliness, coupled with the opportunity to realize 
in practice the truth of the instruction, that strong characters 
are formed. Mere abstract teachings may not be, and usually 
are not, comprehended. The child must be led in the right 
paths and restrained from going in the wrong ones. At no 
time and under no circumstances is it permissible for the 
parent to exhibit or feel hatred toward the child. Love at- 
tracts, hatred repels. No person can by any possibility ex- 
ercise a beneficial influence under the impulse of hatred. 
Neither cruel beatings nor weak indulgence in wrong-doing 
is to be tolerated. The parent must maintain a close bond 
of interest in the doings of the child, encouraging all good 
deeds, and pointing out the evil and showing why and where- 
in it is wrong. Children instinctively rely on parental in- 
struction, if parents are truthful and sincere, and delight in 
their sympathy and approbation. Knowledge that an act is 
condemned by parents who are habitually kind and sympa- 
thetic is usually sufficient to prevent its repetition. To re- 
strain misconduct and compel the performance of duty the 
use of physical force is sometimes necessary; but when used 
it should always be made manifest that it is justly used for 
good ends. Many parents lack moral force and are unable 
to control their own passions and weaknesses. The children 
must then suffer accordingly. In such cases whence is the 
elevating impulse to emanate? Usually and mainly from the 
love of the parent for the child. 

To society the correction of its weak immoral and vicious 
members presents the same task but in a different form. The 



22 EVOLUTION OF GOVERNMENTS AND LAWS 

state undertakes to protect each of its citizens against the 
violence and aggression of others. Most monarchical gov- 
ernments have been based on the principle of paternal author- 
ity in the ruler over all the people. Unfortunately the exercise 
of paternal power by a ruler over- great numbers of people 
lacks the sympathetic element which emanates from the par- 
ental relation. The king has a great many bad children whom 
he proceeds to punish. He knows of their vices only. These 
he hates and carries the hatred on to the possessors of them. 
He punishes in a spirit of vengeance and harshly. From the 
bamboo to the headsman's axe the purpose is to extirpate crime 
and inspire fear in others of like rigor for like offenses. To 
perform the service of administering the punishment men are 
chosen who are not greatly shocked at exhibitions of cruelty, 
and even delight in it. Though instances of compassion for 
criminals are not wanting in Christian countries, and at times 
morbid sympathy is exhibited, the general spirit is all too 
similar to that in despotic governments. 

To approach the consideration of crime with a feeling of 
genuine desire for the welfare of the criminal as well as of 
society may be beyond the stage of morality generally pre- 
vailing, yet it is not too soon to perceive and declare the true 
principles applicable to the subject. Everyone who has had 
much experience with criminals knows that practically all of 
them have virtues and are susceptible to friendly attachments 
as well as other people. They are usually specialists in crime. 
The homicide may be truthful and scrupulously honest in the 
payment of debts and performance of contracts. His crime is 
generally due to some abnormal emotion. It is impossible to 
draw a clear line of demarkation between irresponsible in- 
sanity and responsible passion. The legal rule that the de- 
fendant is responsible for his act if he knew at the time of 
committing it that it was wrongful, even though he was 
powerless to master his passion, is harsh when the purpose of 
the law is merely to measure out a given quantity of punish- 
ment. The forger, the pickpocket, the defaulter or the per- 
jurer, may have as little inclination to do bodily harm to 
another as the most exemplary citizen. The robber and the 



INTRODUCTION 23 

horsethief almost invariably have generous impulses and de- 
voted friends to whom they are strongly attached. The per- 
jurer may have no other prominent vice, and may have 
friends whom he does not deceive. Crime may be committed 
in accordance with a well defined inclination to a particular 
class of offenses, or under stress of circumstances which 
produce a temporary moral depression. This is more ap- 
parent in homicides than in other crimes, but offenses against 
property are often the result of temporary external influences 
which the culprit cannot resist. To weigh the conduct of a 
person charged with crime fairly, the judge should be able 
to see his act from his standpoint. This he is but rarely able 
to do. Everybody departs more or less from the strict line 
of moral rectitude. The Chinese, more logically than the 
Europeans, treat every failure to perform a duty or obliga- 
tion as an offense to be corrected, and grade punishments 
according to the magnitude of the wrong done and all the cir- 
cumstances connected with the offense. They are however 
far less sympathetic in their treatment of offenders than 
Americans. 

It is now quite well understood by criminologists that a 
single offense may be committed by one who is not necessarily 
starting on a career of crime, but may completely overcome his 
criminal inclinations; that it is necessary to know the char- 
acter and environments of a convict in order to understand 
how he should be treated with a view to his reformation, and 
that men are made better by sympathy and encouragement in 
doing what is right and useful, rather than by harsh punish- 
ments. Many crimes are directly attributable to abnormal 
and diseased conditions of the body or the brain. Some of 
these can be speedily and certainly cured by surgical and medi- 
cal treatment. Instead of burning or hanging the humane 
and logical punishment of rape would be castration, which 
would free the culprit from all further impulse to commit 
such a crime. The same operation might be performed with 
great advantage on some of the imbecile, insane and crimi- 
nals of other sorts. Imbeciles who are a public charge cer- 
tainly ought not to be allowed to propagate, nor the incurable 



24 EVOLUTION OF GOVERNMENTS AND LAWS 

insane or confirmed criminal. This like every other treatment 
of unfortunates should be done in a spirit of kindness, and 
for the purpose of benefiting rather than injuring them. In 
many states laws are now in force prohibiting the marriage of 
members of these classes, but such laws are by no means a 
full protection to society. In many cases it is necessary to 
take more effective measures. The exercise of such power is 
not necessarily liable to greater abuse than of others now 
commonly employed. Whatever measures are taken to cure 
mental and moral diseases should be prompted by the same 
motives as those which prompt surgical operations or medical 
treatment for normal people. All these unfortunate classes 
are children of the state, and the state is responsible for their 
welfare. 

Opposed to the performance of its moral duty by the state 
in the treatment of criminals and defectives are views of ex- 
pediency. In apprehending and disarming criminals and luna- 
tics it is often necessary to employ force and to do them bodily 
harm, yet a resolute man can often make an arrest without 
any injury, where another would have a serious conflict. It 
is impossible for the state to always select the best possible 
agents to do this work. So long as men are imperfect, they 
will fall short of the best possible achievements in every line, 
and a state, acting on the most humane and enlightened prin- 
ciples and theories, will necessarily exhibit imperfections in 
practice. It is of the utmost importance however that the 
state free itself from every just charge of acting on the princi- 
ple of hatred toward any class of its citizens. Charitable in- 
stitutions, prompted by sympathy for unfortunate humanity, 
are being rapidly multiplied. The elimination of all the bur- 
densome classes by wise and just means is not an idle dream, 
but an accomplishment which may be approximated in the 
near future. 

The code of Hammurabi of Babylon exhibits the spirit of 
hatred toward criminals. Of all punishments, maiming, so 
frequently imposed by this code, is the most impolitic, for it 
leaves society still burdened with the criminal after his power 
to be useful has been diminished and his hatred for others 



INTRODUCTION 25 

stimulated. To put out an eye or cut off a hand or foot is a 
most shocking exercise of cruelty, yet such punishments were 
long recognized as just throughout Babylonia and Judea. 

One of the most valuable, ideas developed by Bentham in 
his Morals and Legislation is that of the fecundity of various 
impulses. Much of the cruelty arid misery in the world has 
resulted from laws like those of Babylon, which constantly in- 
stilled a lesson of hatred into the minds of the people. The 
propagation of sentiments of amity and sterilizing those of 
enmity are matters of prime importance for the consideration 
of legislators in dealing with crime, and should not be left in 
the sole care of moralists and religious teachers. It is evident 
that no state ever has or ever can weigh out and impose on 
each culprit a measure of punishment nicely balancing his 
offense. The multiplicity of considerations to be taken into 
account in each case is so great that adequate judicial machin- 
ery cannot be constructed for the work. Restraints seem nec- 
essary, and the imposition of them must be in accordance with 
law by public agents, but the deeper and stronger purpose is 
to induce good conduct. Wars, the execution of criminals, 
torture and all vindicitive punishments propagate the spirit of 
hatred and induce criminal conduct. 

National Crimes 

The strong nations are subject only to self-imposed checks, 
prompted by sentiments of justice, selfish interest, fear or 
other considerations influencing their conduct. There is no 
superior force to restrain or punish them. That great nations 
commit great crimes is apparent. The example of an aggres- 
sive war teaches all the people of the nation a lesson of crime. 
While the nation itself acts the part of a criminal how can it 
hope to instruct its citizens in morality? An aggressive war 
to take by force that which belongs to another is identical 
in principle with the deed of the robber. The incidental 
slaughter in battle corresponds exactly with the murders the 
robber commits in getting his booty. Logically the state 
should deny to itself utterly the right to use military force 
against another except in self defense. The moral law ap- 



to 



26 EVOLUTION OF GOVERNMENTS AND LAWS 

plies as well to nations as to persons. It is only by full recog- 
nition of its binding force in all human relations that a state 
can hope to deal successfully with its morally weak citizens. 
Judicial settlement of international disputes in accordance 
with fixed principles is indispensable to a complete scheme for 
the elimination of crime. The false lessons inculcated by a 
great war affect the moral tone of the people for generations. 
The nation should be the great teacher and exemplar of mor- 
ality. When it voluntarily goes to war it becomes a great 
teacher of crime. 

Legislative Morality 

The functions exercised by a state are divided into legisla- 
tive, judicial and executive. Briefly stated, the legislature 
declares the law, the judiciary interprets it and determines 
its application and the executive carries it into effect. It 
would seem that the business of a law making body would 
naturally be to formulate rules of conduct and of rights ex- 
pressive of the moral law. The most casual examination of 
the work of any such body will disclose the fact that consider- 
ations of expediency largely predominate, and that the pure j 
moral law is generally regarded as too good for practical use 
in a world where men are constantly seeking personal ad- 
vantage by the use of more or less immoral expedients. In 
defining crimes the legislature gives names to certain classes 
of immoral acts. The list is brief when compared with one 
including all the immoral conduct of which people are guilty, 
but it includes those most vicious and common. Concerning 
some vices there is a tendency for public opinion to ebb and 
flow, and for legislatures to adopt extreme measures of re- 
pression at one time and at another to indulge the utmost 
toleration. Thus drunkenness, gambling, prostitution, liquor 
selling, usury taking and like offenses are sometimes visited 
with severe penalties, and at others with none. Heresy, witch- 
craft and other fictitious crimes are at times visited with ! 
death by torture and at others laughed at as absurd. Resist- 
ance of an oppressive ruler is treason when unsuccessful and 
patriotic revolution when it results in the expulsion of a 



INTRODUCTION 27 

tyrant. Smuggling goods is an offense or not according to 
the prevailing policy of the government with reference to 
revenue and foreign trade. It involves no moral wrong when 
the trade is in useful articles and the parties to the transaction 
are mutually benefited, except as there may be a moral ob- 
ligation to pay a tax on the goods. 

On the other hand there are moral wrongs in great number 
which European and American states never attempt to punish 
as crimes. It is morally wrong for an able bodied man to 
live by begging instead of useful labor. This is sometimes 
punished though the beggar gets only the most meagre subsis- 
tence from the public. It is a far greater moral wrong for a 
strong healthy intellectual man to live in idleness and luxury 
on the labors of others, yet those who have means to do so 
are not only never punished, but are usually looked up to as 
of a superior class. It is always wrong to refuse to pay a 
just debt when able to do so, but it is not classed as a crime. 
It is a moral wrong to withhold from another anything that 
of right belongs to him, yet in many cases it is not regarded 
as a crime. The Chinese more logically classify all wrongful 
acts and failures to Perform duties as punishable offenses. It 
is morally wrong to fail in any duty to aid another, yet rarely 
punishable. It is morally wrong to refuse to do a useful part 
in life and exchange service for service and kindness for kind- 
ness, yet it is not and seldom could be a punishable crime. 

From the instances given it is apparent that a legislative 
body in selecting offenses to be punished is governed by views 
of necessity and expediency. It is utterly impracticable to 
have courts sitting in judgment on every trifling deviation 
from strict moral rectitude. Such trials would be an in- 
tolerable burden, productive of great harm and little or no 
good. The legislature therefore selects such crimes as ap- 
pear most dangerous to society and imposes penalties for 
their commission. In dealing with these it is a matter of 
great difficulty for the state to keep within moral limits. 
With the abolition of whipping posts, pillories and the death 
penalty and the adoption of more humane treatment of pris- 
oners in places of confinement, there are evidences of a grow- 



28 EVOLUTION OF GOVERNMENTS AND LAWS 

ing conviction that the state has no moral right to do evil to 
a criminal to gratify public hatred of the crime. The true 
theory of the relation of the state to criminals is that it is one 
of guardianship and similar to that assumed in the care of 
lunatics. Its duty is to protect the public against their vio- 
lence and cunning, and at the same time promote the welfare 
of the culprit. 

In dealing with the rules governing what are termed civil 
cases the legislature has a far wider field to cover. Crime is 
abnormal and exceptional, but in highly civilized states the 
people are interdependent, and the rules governing their deal- 
ings and relations have more or less effect on all. It would 
seem to be the business of the law-making power to elaborate 
and arrange in logical order all rules which are to be ob- 
served as law. It would also appear to be its duty to make 
every rule conform to the moral law; in fact to make rules 
which are merely expressive of the moral law applicable to 
each different class of relations and transactions. Neither 
of these things, however, has ever yet been accomplished. 
Nothing can better illustrate human selfishness and fallibility 
than the deficiencies and imperfections of the great codes 
which have been promulgated in different ages and parts of 
the earth. Cases continually arise for which there is no pro- 
vision, and doubts as to what rule governs under a given set 
of circumstances perplex the judges. All great codes have 
been in main compilations of the rules already observed in the 
courts, and have naturally embodied whatever unjust and 
immoral system had been before firmly established. Thus 
the Code of Manu, so exalted in much of its principles, is 
based on classifications of the people designed to maintain the 
supremacy of the priestly and military orders. The code of 
Justinian merely continued the laws concerning slavery, per- 
sonal relations and property rights with slight modifications, 
none of which reached their fundamental immoralities, and 
the Chinese code adheres to the theory of the inferiority of 
women and cruel punishments for all serious derelictions. 

The absence of any general codification of the law in Eng- 
lish speaking countries may be accounted for in part by the 



INTRODUCTION 29 

greater complexity of industrial and commercial affairs, the 
rapid substitution of new methods for old, and the adherence 
to judicial precedents to supplement the statutory law. The 
difficulty in bringing a large representative body like the Brit- 
ish Parliament or an American legislature to an agreement 
on so many and such varied topics as would necessarily be 
included in a code covering the whole field of civil law is too 
great to allow a complete codification at one time and as a 
single act. Codification by topics is more feasible, and some 
progress has been made in this way in several states. The 
rapid multiplication of judicial precedents, the disposition of 
some courts to draw nice and even fanciful distinctions in 
order to reach a desired result, the breaking down of whole- 
some rules by the multiplication of exceptions to them, and 
the growing impracticability of administering substantial jus- 
tice by the system now followed, call for some form of more 
concise and authoritative statement of the law. The multipli- 
cation and diversification of business enterprises and combi- 
nations have complicated the law of agency, employer and 
employee, corporations and kindred topics. Continuing de- 
velopment will doubtless cause many more rapid changes in 
methods. The law governing the new relations thus developed 
cannot lead, but must necessarily follow the new conditions. 
Codification for the future can only cover the field of past 
and existing needs; it cannot adequately provide for the 
unknown. 

The principal functions ordinarily exercised by all legisla- 
tive bodies relate to the creation of offices, defining their 
functions, designating the manner of filling them, levying 
taxes, expending public money and regulating the various 
branches and departments of the governmental system. In 
exercising these functions they work in the true field of ex- 
pediency. There is nothing in the moral law indicating the 
number of officers needed by a state, the duties properly at- 
tributable to each, the length of time each should serve or the 
mode of their selection. It does, however, require that each 
public servant should render a just equivalent in service for 
the salary he receives, and impose restrictions on his invasion 



30 EVOLUTION OF GOVERNMENTS AND LAWS 

of the rights of the people. In devising and constructing the 
machinery of government the law-making power has the task 
of providing governmental agencies to restrain the people 
from doing wrong and to compel them to do right. In this 
it undertakes to exert a moral force superior to that which 
directs the conduct of such of its citizens as it is designed to 
regulate. All experience proves that the men chosen for offi- 
cial positions, no matter what the form of the government, 
are not distinctly superior in moral purposes to the average 
citizen. They are however superior to the classes most need- 
ing restraint and supervision. By carefully defining their 
duties and strictly -limiting their powers the officers are re- 
strained from misconduct and instructed in the performance 
of their duties. 

The law-making power constructs the judicial system, es- 
tablishes courts, provides for the selection of judges, fixes 
their compensation and tenure of office, prescribes rules of 
procedure and is responsible for the principles of law admin- 
istered in them. It also outlines the organization of all the 
executive branches of the government, fixes the number and 
prescribes the duties of each class of officials and provides 
compensation for their services. It authorizes the organiza- 
tion and equipment of armies and imposes taxes to maintain 
them. In doing each of these things it is evident that the 
end to be accomplished should be a moral one, but in devising 
means to accomplish it, the legislature necessarily chooses 
such instruments and methods as it deems best adapted to the 
end. Considerations of expediency are controlling. If these 
were necessarily considerations of public expediency, the state 
would be in no danger except from errors of judgment, but 
unfortunately personal and party expediency are quite too 
often controlling considerations. Where autocratic power is 
given to one man, his ambitions and personal interests usually 
outweigh the public welfare. If he has the instincts of a 
robber, he makes war on his neighbors for his own aggran- 
dizement, and leads his subjects out to be maimed and slaugh- 
tered in the effort to kill others. Where the law-making 
bodies are composed of many members, factional and party 



INTRODUCTION 31 

expediency often leads astray. An exchange of personal 
favors between members at the public expense is also a most 
fruitful source of bad legislation. There is a never failing 
tendency to multiply offices and increase salaries to the ut- 
most limit that the people will bear. This is true of all forms 
of government, though most extreme in the most despotic. 
It results everywhere from mere motives of personal ex- 
pediency. 

There is a further question in which no moral consideration 
is directly involved, yet concerning which there is much strife 
and hot contention. What business functions and useful en- 
terprises ought the state to conduct? With the increasing 
disposition and capacity of men to combine and cooperate in 
enterprises calling for concert of action, industries have de- 
veloped employing great numbers of men. Railroad, tele- 
graph, mining, manufacturing and trading companies, deal 
with so many people that their management becomes a mat- 
ter of public concern. It is demonstrated that they can be 
operated successfully by private corporations acting through 
their own agents and officials and under their private laws. 
It is also shown by experience that some of them can be suc- 
cessfully operated by public agents. The question then is pri- 
marily one of expediency. Yet expediency deals with the 
selection of means to accomplish ends, and we often find pub- 
lic expediency and private in sharp conflict. Whenever it 
can be truthfully said that the public is as well served by a 
private owner or corporation as by a public agency, it would 
seem to accord with the principle of liberty to leave the busi- 
ness in private hands. But where the governing agency of a 
private corporation uses its power to enrich a few at the 
expense of the many, or fails to give as good service as its 
revenues warrant, it would appear necessary to either effectu- 
ally supervise or assume the management of the business. 
Supervision necessitates two sets of managers, one for the 
private owner and the other for the public. There is a marked 
trend in the direction of the assumption by governments of 
useful business functions, but no modern state has ever ap- 
proximated the business organization of ancient Peru, which 



32 EVOLUTION OF GOVERNMENTS AND LAWS 

singularly affords a model of state ownership of the ultimate 
title to all the land, mines, fisheries, flocks and herds, as well 
as the roads and public buildings. 

In determining the expediency of assuming business func- 
tions by the state the capacities of the men whom it can and 
will place in public office and their moral purposes are factors 
of prime importance. No mere theory of organization, how- 
ever attractive, can make good a lack of capacity for the 
duties imposed on public agents. Much may be done by those 
charged with the general supervision of grant enterprises to 
systematize and simplify the work of each subordinate, and 
by careful instruction in their respective parts to qualify men 
of moderate capacity for their work. This is equally true 
under public and private management. The great corpora- 
tions exhibit great inequality in the apportionment of the 
benefit of the combined efforts of many in the conduct of 
their business. These inequalities are based in part on the 
value of the effort contributed, but much more on positions 
of advantage held by some, due to the government of the 
affairs of the corporation by a select few. This results from 
the plan now generally followed of allowing a majority of 
the stockholders to rule. It usually insures efficiency and 
vigor of management, but at the expense of much injustice. 
The Post Office, operated by the governments, is the greatest 
and best business organization in the world, and is a model 
for other lines. 

The legislature makes provision for public schools, in all 
the American and European states, with some few exceptions. 
In assuming the function of educating the young in public 
schools modern states have done more to elevate conceptions 
of duty, standards of morality and efficiency in all lines of 
activity than by any other means. Here direct public super- 
vision has been shown to be vastly better than private direc- 
tion. The Hindoos sought to insure the education of the 
twice born classes by requiring the instruction of the youths 
as a religious duty. The Chinese encouraged learning by 
making it the avenue to public employment. Modern states 
give instruction as a preparation for all the duties of life. 



INTRODUCTION 33 

The Hindoos, the Mohammedans and many Christian states 
regard the maintenance of the established religion and the 
observance of religious forms and ceremonies as not only a 
legitimate function of government, but one of prime im- 
portance. The Chinese regard forms and ceremonies, mourn- 
ings, costumes, kneelings, knockings and salutations of all 
kinds as matters worthy of strict regulation by the state. It 
is difficult to perceive that any moral question is involved in 
religious ceremonial or the formalities of Chinese etiquette, 
though education and the general consensus of opinion may 
give them an artificial value hard to comprehend. 

Except where limited by constitutional restrictions, as in 
the United States, the legislature is free to select its fields of 
activity, to choose the ends it will try to accomplish and the 
means it will employ for its purposes. It may deal with mat- 
ters affecting the welfare of the individual only, with those 
relating to the intercourse of one with another, and with all 
forms of organization and combination of men, and it neces- 
sarily deals with the (political organization. Viewing the 
limitless field of possible activity and the varied impulses that 
representatives from all parts of a great country bring to- 
gether, it is not surprising that schemes in endless variety 
are presented for consideration. As a condition precedent to 
any improvement there must be a suggestion of something 
new. On the other hand, in order to proceed safely, it is 
necessary that a new rule of action, to be followed by many 
or all, should be well understood by those it affects. So, much 
discussion and consideration of new projects is indispensable. 
The reformer, imbued with the great value of his scheme is 
anxious to have it put into immediate operation, while the 
conservative objects, inquires and hesitates till thoroughly con- 
vinced that it is good. The friction caused by the ardor of 
those who propose and the immobility of those who resist 
often produces heat and sometimes conflagrations; yet the 
best results seem to call for something of this process, fol- 
lowed by a general agreement. Before any great change in 
the order of things can be of full benefit, it is necessary to 
prepare the public mind for it and educate the people to act 



34 EVOLUTION OF GOVERNMENTS AND LAWS 

in accordance with it. The French revolution clearly exhibits 
the force of habit and education in continuing bad systems in 
spite of sweeping reforms devised and put forth by the legis- 
lative power. Men who had been long accustomed to obey 
a master could not at once' find prosperity in liberty. The 
laborer, who has always performed tasks under a master for 
wages, may be and often is incapable of conducting a business 
of his own with any degree of success. He may utterly fail 
to obtain the materials necessary for his employment at the 
only work he knows how to do. The greatest human achieve- 
ments requiring the combined efforts of many are only pos- 
sible of accomplishment by specialization and division of 
labor. To each participant some part must be assigned which 
he fully understands. There must be intelligent leadership, 
causing all to move harmoniously with strength united and 
not opposing the force of one to another. The distribution 
of the profits resulting from a great enterprise may be most 
unequal and unjust, so that those who furnish the capital or 
direct the operations receive grossly excessive shares, yet if 
the underpaid laborers are incapable of carrying on the busi- 
ness at all without the capital or supervision, there may be no 
other alternative but to continue in the service or starve. In 
all attempts to substitute a just for an unjust system it is in- 
dispensable that those who are to be benefited be educated to 
act according to the new plan. 

In despotic countries every combination of the people not 
directly authorized by the government is looked on with sus- 
picion as likely to breed resistance of arbitrary power. In 
the most advanced states the various forms of voluntary or- 
ganization promoted by private citizens are almost innumer- 
able. Their numbers and size bear evidence of the increasing 
confidence of man in his fellows, as well as of growing 
capacity for combined effort. The earliest charters in Eng- 
land and the American colonies were granted by the crown or 
act of Parliament or colonial legislature as a special favor. 
Now corporations may be formed under general laws for 
designated purposes, and in many states the only limitation of 
purposes is that it be to carry on a lawful business or for 



INTRODUCTION 35 

social, religious or charitable purposes. In recent years, vast 
fortunes have been accumulated by promoters and manipulat- 
ors of corporations by more or less dishonest transactions in 
their stocks and bonds. The unscrupulous men and the im- 
morality of their methods have been concealed behind the 
artificial structure of the corporation. The vast aggregation 
of capital and combination of men under the control of the 
managers of the great business corporations in the United 
States have given great influence to them in political and 
governmental affairs. All departments of the government 
have been more or less tainted by their insidious and often 
corrupt methods. One of the great problems now promi- 
nently before the people is that of correcting and prohibiting 
the abuses connected with these great business organizations 
without impairing their usefulness. This cannot be done by 
merely regulating the affairs of the corporation itself as an 
entirety. It seems more important just now to regulate the 
operations of the men wjio manipulate corporations and their 
stock and bonds, and by^ndirection fleece the general public 
and oppress the employees of the company. The immorality 
lies in the acquisition of unearned fortunes by cunning and 
fraud. Even when the people are fairly informed concerning 
the evils to be remedied, the practical difficulties to be en- 
countered in devising remedies to overcome the most power- 
ful and wealthy combinations in the country are very great. 
Inordinate private fortunes are unhealthy in their tendencies 
and influence on the body politic. The simple and direct 
method of dissipating them is by the use of the taxing power. 
Legislatures deal with existing conditions. It is idle to 
denounce penalties against crimes that no one commits, or 
that are so rare as to be negligible. Laws affecting property 
and contract rights must be adapted to needs either present 
or plainly foreseen. Men differ widely in their views on the 
abstract questions of ethics involved in the distribution of the 
proceeds of enterprises to which many persons contribute in 
various ways. One fundamental proposition seems to be 
commonly overlooked. A just claim to wealth in excess of a 
fair share of the face of the earth, its natural products and 



36 EVOLUTION OF GOVERNMENTS AND LAWS 

the fruits of the toil of past generations, must be based on 
the personal services of the claimant. This of course ex- 
cludes from view the claims of the helpless and dependent, 
and applies only to those able to do useful service. Service 
meriting reward may be rendered in any useful form of 
mental or physical activity, but it must be personal service of 
the claimant. In morals there can be no such thing as vicar- 
ious earnings. Personal merit affords the only possible basis 
for a just claim of reward. The ways in which one may be 
serviceable to his fellow men are numberless, and in the 
multiplicity and complication of human affairs the value of 
the service and the designation of the persons who ought to 
give the compensation for it, are often so uncertain and ob- 
scure that no definite rule can be announced. In this situation 
the best that can be reasonably demanded is a fair approxi- 
mation to a just and uniform rule. Yet in no country are 
the laws based on a theory requiring personal merit as a basis 
of property rights. In the United States unlimited land mo- 
nopoly is allowed and protected. The only limitations on the 
amount and kind of land over which one may exercise abso- 
luate dominion are ability to purchase or otherwise acquire 
title and liability to taxation and the exercise of the power of 
eminent domain under which it may be purchased for strictly 
public uses. In nearly or quite all civilized countries the title 
to land and movables also passes by inheritance or will to 
designated persons, wholly without regard to merit, needs, 
amount and capacity or disposition to use properly. A small 
inheritance tax is sometimes imposed, but this does not ma- 
terially affect the general proposition. On the other hand a 
very large part of the people have no land, no money to buy 
it with and no capital of any kind. Their sole dependence 
for subsistence is on employment by those who have land or 
other capital for wages. For a dwelling place they are de- 
pendent on the terms imposed by landlords and their ability 
to get wages enough to satisfy their demands. These con- 
ditions exist because the law allows them. Are the laws just 
in these respects? Monopolies of coal, oil, gas, iron, copper 
and other mineral products, and of water, waterpower, trans- 



INTRODUCTION 37 

portation lines, means of transmitting intelligence, trade and 
industry, all rest on a similar basis. The law and the power 
of the state protects them. The courts confirm their titles and 
enforce their contracts without regard to public interests. 
Established legal theories and rules are followed without re- 
gard to fundamental moral principles. Justice demands more 
than that the destitute citizen shall have freedom to make such 
contracts for his services as he can. It requires that it be 
made possible for him to make just contracts through which 
he can obtain the fair value of his services. Justice also de- 
mands that the product of his service shall go to the one for 
whose ultimate use it is performed without the addition of 
any unmerited profit to the employer or exploiter. Monopoly 
of every kind stands between the producing and consuming 
classes and extorts that which it has not earned and does not 
merit. The law-making power is responsible for the existence 
of every form of monopoly. It actively promotes or passively 
tolerates every vice that inheres in monopoly. In the final 
analysis it will be found that every form of special privilege 
and unjust advantage has its root in the law and endures 
only because it is protected by the public force. The socialists 
point out the injustice of the exploitation of labor by those 
who control the capital. The remedy they propose is a com- 
plete reorganization of society. One may readily concede the 
soundness of their criticisms on the injustices of existing 
systems without approving the expedients by which they pro- 
pose to remedy them. It may be that progress toward con- 
ditions of ideal justice can be made more rapidly by the use 
of other expedients for which the people are better prepared 
by custom and education. The single tax may tend to un- 
dermine land monopoly, but will it prevent further exploita- 
tion of labor? The value of expedients is and in the nature 
of things must always be more or less experimental. The ulti- 
mate moral purposes to be accomplished by the legislatures 
will remain approximately constant. Experience abundantly 
proves the inertia and resisting power of habit and the ex- 
treme difficulty of successfully operating a new system for 
which the multitude are unprepared. On the other hand, no 



38 EVOLUTION OF GOVERNMENTS AND LAWS 

matter what the form of government or plan of social organi- 
zation, evils clearly defined and persistently pointed out by 
those in a position to influence the governing body may always 
be remedied without disrupting the bonds of social order to 
which the people are accustomed. Revolution, for which the 
people are fully educated, may accomplish great reforms sud- 
denly, but revolution for which the people are unprepared is 
quite as likely to retard as to advance the cause of justice. 

The forms in which unmerited revenues are now drawn 
from accumulated wealth are mainly rent, interest and divi- 
dends on corporate stocks. Rent and usury are old forms of 
revenue and have been declaimed against from very early 
times. It is only recently that corporate stocks have become 
conspicuous. Numberless laws have been promulgated against 
usury, varying in terms all the way from absolute prohibition 
of all interest to the allowance of all the parties agreed upon. 
Rent has often been declaimed against as robbery. The de- 
fect in the reasoning of those who challenge the rightfulness 
of claims to interest and rent is mainly in the failure to go 
back to the right starting point. The necessity for capital in 
all business enterprises and the universal custom of giving 
its owner compensation for its use show a general recognition 
of the merits of economy and prudence in the accumulation 
and preservation of property. The service of preserving the 
grain after it is harvested is as useful as that of raising the 
crop. He who performs this service is entitled to his reward. 
Economy in use is a merit to be compensated with the savings. 
But property unjustly acquired, or gained by accident of birth 
or favor, affords no just basis for an income in any form, 
except as the possessor earns it by his own efforts combined 
with it as capital. 

Unearned wealth, no matter how it may have been acquired, 
is usually either soon squandered or invested in land, interest 
bearing securities or corporate stocks. Modern exotic for- 
tunes are all largely made up of such investments. The in- 
comes of the owners derived from the rents, interest and 
dividends produced from such investments is then unearned 
tribute paid to the investors. The unjust burden may not 



INTRODUCTION 39 

fall on the ones who make the final payments. It may and 
often does happen that they in fact profit from holding an 
intermediate position and that the real burden is passed on to 
others. This may be illustrated by an investment made in 
the bonds of a manufacturing company owned by a stock 
gambler, who acquired his wealth by fraudulent dealings in 
the stock market. The manufacturing company by use of 
the capital in a business protected by the government or so 
overgrown as to become a monopoly, may extort inordinate 
profits from the general public consuming its products and 
make profits on the borrowed capital largely in excess of the 
interest paid, or by monopoly of the labor market may with- 
hold from its employees revenue that justly should go to 
them as wages. In such cases the burden of the interest is 
passed on to third persons with the addition of the company's 
extortions, and both borrower and lender gain unearned 
revenue. Similarly a railroad company may extort excessive 
income through its transportation monopoly or withhold fair 
wages from its employees, and after paying interest on all 
its invested capital, pay dividends on stocks for which nothing 
was paid and which therefore represent no investment. The 
unearned interest on unearned wealth, so invested and used, 
is thus paid by a prosperous company out of funds derived 
from others. Similar illustrations might be made of the pass- 
ing on to third persons of the burdens of rent and dividends on 
stocks. The farther the person who ultimately bears the un- 
just burden is removed from the ulitmate beneficiary of it the 
more the injustice is obscured and the greater the difficulty in 
obtaining redress. The real burden in all such cases rests on 
the consumer or the laborer or both. The vice does not in- 
here in rent, interest or dividends as such, but in the lack of 
moral basis for a demand of any payment in any form to the 
beneficiary. It is because the property from which they are 
derived is an unjust acquisition rather than that rent, interest 
and dividends are essentially unjust in their nature. 

The inception of title to unearned wealth everywhere is 
largely due to governmental favoritism, monopoly, speculative 
operations in which there is an element of fraud, breach of 



4 o EVOLUTION OF GOVERNMENTS AND LAWS 

confidence or extortion, gambling and trade operations having 
gambling characteristics, and corporate favoritisms and 
manipulations. Such gains are all clearly immoral, and if 
full justice were practicable should be returned to the sources 
from which they were derived. Great gains not infrequently 
come from fortunate ventures in mining and legitimate trade 
and manufacturing, and from great inventions. The point 
at which such accumulations become unwholesome and detri- 
mental to the public interest is not easy to define. Perhaps 
it may safely be said that this point is not reached until there 
is an element of monopoly or oppression attending the pos- 
session. So long as the use made of them promotes the gen- 
eral welfare there would seem to be no ground for public 
interference beyond the imposition of taxes. Ownership of 
land which the owner does not occupy or improve and for 
which he merely takes ground rent, partakes of the nature of 
monopoly. The universal need of an abiding place on the 
face of the earth and of resort to its natural wealth for 
•subsistence renders land monopoly peculiarly oppressive. The 
safety and permanence of investments in land make them at- 
tractive to people having surplus means. Pride also is grati- 
fied by the possession of large estates. These influences 
operate everywhere and the extention of the power of the 
wealthy by monopoly of the land goes on more rapidly in the 
United States than in any other great country because the 
conditions favor rapid accumulation of wealth and there is 
full liberty to make unlimited investment of profits in land. 
Monopoly of particular products and lines of business is more 
noticeable and therefore more discussed, but it lacks the per- 
manence and fundamental character of land monopoly. Mo- 
nopoly of money and credits, while not impossible, is more 
difficult of accomplishment. It is always only partial and 
temporary, but extremely disasterous in its effects. 

It is manifest that if property rights were determined by 
the rules of pure ethics, monopolistic extortion or any sort 
of fraud or crime would confer no title. If the law-making 
power were chargeable with the duty to make provision for 
righting every wrong, it would be necessary to have inquiry 



INTRODUCTION 41 

made into the sources of title to all property acquired through 
any such immoral means and make full restitution to all who 
had been injured. While it is not to be expected that any 
system of governmental control will in practice work out ideal 
justice in every case, it would seem that in theory at least the 
rules of law should cover the whole field of ethical principles. 
The moral law also has its prohibitions and negations and 
forbids the doing of positive wrongs. The moral law forbids 
the legislature to promulgate any law the natural effect of 
which is to produce unfair conditions for or unjust relations 
between any of the people. Yet the history of the world is 
full of instances in which the law itself has directly author- 
ized the grossest possible oppression. Slavery has always 
required the aid of the state in enforcing the dominion of 
the masters. The state thus became fully responsible for all 
the immoralities of slavery. The state by its laws determines 
how title to the face of the earth may be acquired, transferred 
and enjoyed. The vices of the feudal system, which virtually 
made the lords of the manors masters and the tenants on 
their estates slaves, were the vices of the state and perpetuated 
by its laws. Modern great corporations are mere creatures 
of the law, called into being by it, and with no power or 
vitality beyond that given them by the state. They require 
the active intervention of the courts and officers of the law 
to protect them in the exercise of their functions. The great 
land owner requires the strong arm of the law to dispossess 
tenants who will not comply with his terms. In free America 
he may drive everybody from his land who will not pay the 
rent he demands, and in doing this the state is his servant and 
executes his commands in accordance with the theory of his 
absolute dominion over so much of the face of the earth as 
he has lawful title to. Monopolies of all kinds and sorts are 
either created or allowed by the state, and are always depend- 
ent on its protection. The government then is directly re- 
sponsible for all the wrongs and immoralities authorized by 
it or which are necessary incidents of them. It can no more 
escape responsibility for the injustice which results from its 
laws of property than from that which inheres in the institu- 
tion of slavery. 



42 EVOLUTION OF GOVERNMENTS AND LAWS 

The general run of legislative enactments deals merely 
with details and incidents of the existing system. Funda- 
mentals are seldom considered unless brought to view by some 
political upheaval. But in dealing with incidents and details 
the compass and chart of ethical principles should always be 
looked to for safe guidance in the right direction. Sound 
morality is not to be confined in the homes or the promulga- 
tion of it left exclusively to religious teachers. The legisla- 
ture is not only itself morally bound to follow ethical 
principles in all its enactments, but in order "to promote the 
general welfare" is also charged with the duty to exert its 
full powers in the dissemination of such principles and pro- 
curing the observance of them. Ethical principles are not 
necessarily rules of cold, hard and gloomy morality, denying 
all pleasure and requiring mortification of the flesh without 
reason. They are the rules that bring to humanity the maxi- 
mum of love, joy and exuberant life, so ordered that these 
blessings propagate their kind, continue and multiply in all 
directions. 

It may be said that this is the domain of religion and of 
parental instruction rather than of governmental direction. 
True religion of course teaches the immutable laws of the 
Creator, which cannot be other than the living moral law. 
The most serious objection to religious teaching is that its 
doctrines are asserted dogmatically, as having divine sanction 
and admitting no possible errors. Religious establishments 
are subject to many of the evil influences that affect secular 
governments. The men who direct their affairs resort to 
human expedients for their personal gratification and pro- 
mulgate falsehood and immorality as having divine sanction. 
The mere claim of divine authority for their teachings re- 
sults in many places arid for long periods of time in precluding 
inquiry into the truth of them. Fair illustrations of the ex- 
treme aberrations of the religious hierarchies are in the sacri- 
fices of the ancient Mexicans, the Druids, the Hindoo sati, 
the Holy Inquisition of the Church of Rome a few centuries 
ago with the frightful torture and burning at the stake of 
innocent men for the fictitious crime of heresy, and the Mo- 



INTRODUCTION 43 

hammedan propagation of the word by the sword. Less 
vicious are the more modern extortions of contributions from 
needy people to maintain the pomp and magnificence of church 
establishment, ceremonial and priestly trappings; supersti- 
tious awe of beasts, birds and reptiles as in India and ancient 
Egypt and the worship of idols, images, relics and symbols. 
With such forms of darkness religious law-givers have ob- 
scured the light and beauty of life. The overshadowing fault 
of all great religious systems is that they constantly claim 
divine authority and sanction for falsehood and a divine 
commission to close 1 the door against all searchers for truth. 
The responsibility for the good conduct of each individual 
rests primarily with himself. The ideal state of society is 
one in which each person of his own accord adheres strictly 
to the moral law and discharges all his social duties. What- 
ever the form of government or the system of laws promul- 
gated by the legislative power, the heart and life of society 
will still depend on the general average of voluntary indi- 
vidual conduct. Wherever there is a general disposition to 
be just, helpful and cheerful, there will be little need of legis- 
lative rules to supplement the moral law. On the other hand, 
where avarice, hatred and distrust prevail, no governmental 
supervision can possibly fill the requirement. 

Legislative Expedients 

The legitimate field of legislative expedients is of vast di- 
mensions and one in which law-makers may still find ample 
employment after it ceases to be necessary to direct the morals 
of the people. Where men combine for the common good, it 
is necessary to determine the form of the combination and 
the part to be performed by each participant. The national 
government of the United States is a combination for cer- 
tain general purposes. The framers of the Constitution dealt 
mainly, almost exclusively, with questions of expediency in 
providing instrumentalities to carry out these purposes. They 
established executive, legislative and judicial agencies to 
severally perform specific functions. Instead of combining 
all powers in one man or set of men they divided them so 



44 EVOLUTION OF GOVERNMENTS AND LAWS 

that each should be a check on the other. They vested 
the executive power in a president, the legislative power in 
Congress, and the judicial power in courts. In forming 
Congress of two houses differently chosen they acted wholly 
on considerations of expediency. There is no moral ques- 
tion involved in the distribution of the powers of gov- 
ernment among the three coordinate branches, but it was 
deemed wise to do so, mainly because experience had shown 
that where all the powers were combined, personal interests, 
ambitions and passions often dictated governmental policy to 
the public detriment. It was thought that by a division of 
powers each branch of the government would act as a check 
on the others to confine them to the performance of the bene- 
ficial functions for which they were established. With such 
a distribution of powers public expediency is deemed more 
likely to find expression through the public agencies than mere 
personal expediency. Similar principles were applied in the 
state constitutions. Acting under these constitutions law- 
making bodies have established public agencies of various 
kinds. Most of these are deemed necessary for the public 
welfare. Some are places created for favorites, and others 
to promote party, rather than public, ends. Here personal ex- 
pediency overrides not only public expediency but also the 
moral law. 

As governments slough off their warlike and vindicitive 
functions and take on more beneficent ones, an ever widening 
field of possible usefulness is presented. As sentiments of 
hatred diminish and kindness and mutual confidence increase, 
the necessity for war passes away and men of all countries 
join in all kinds of religious, charitable, social and business 
organizations. The law-making power has much concern 
with great private combinations. In despotic countries they 
are viewed with suspicion because they may possibly conceal 
revolutionary schemes. In the United States great business 
combinations exert undue influence on Congress, state legis- 
latures and administrative officers. The practical question 
how the beneficial activities of all such combinations can best 
be preserved and promoted and their evil tendencies curbed 



INTRODUCTION - 45 

is one of much difficulty. The measure of liberty to be ac- 
corded to all citizens in forming combinations for lawful 
purposes is a question of expediency to be determined by the 
legislative power. It is also a question of expediency as to 
how and to what extent their operations should be supervised 
by the government. 

In reference to the useful functions which the state itself 
should assume as a political organization there is extreme di- 
versity of opinion, ranging all the way from curtailment of 
the powers now exercised by the government to the schemes 
of the socialists and Communists who would have state man- 
agement of most or all industries and common ownership of 
land and capital employed in industries. Shall the state own 
and operate railroads, telegraphs, telephones, mines, factories, 
ships, farms, stores, warehouses, banks, waterworks, gas, 
light, heat and power plants, build dwellings, carry on the 
business of insurance, maintain hospitals and provide medi- 
cal treatment for the sick; in fine what and how much much 
if any of the businesses now conducted by private persons 
ought the state to undertake ? These questions have provoked 
many hot discussions, conflicts and some bloodshed. Men 
sometimes treat them as involving vital questions of morals. 
They are in fact mere questions of expediency, experimental 
in their nature, more or less temporary in character, and 
reasonably certain of kaleidoscopic changes of aspect. Har- 
monious concert of action for the accomplishment of desirable 
ends is the great desideratum. Expediency must find the 
way for it, not partial selfish expediency, but just public ex- 
pediency. The moral law applies to all people at all times 
and under all circumstances. Expediency is special, tempo- 
rary and must be adapted to conditions. In determining 
what tasks may safely be assigned to a person it is necessary 
to know his physical, mental and moral strength, his habits of 
body and mind, his purposes and desires, the influences with 
which he is surrounded, the education he has received and 
every other circumstance likely to affect his conduct. It is 
possible to utilize men of every grade and kind. The difficulty 
lies in putting each in his appropriate place and keeping him 



46 EVOLUTION OF GOVERNMENTS A'ND LAWS 

there. Concert of action among many implies specialization 
and leadership. How shall the leaders be chosen? In enter- 
prises conducted by the government they are appointed by 
public authority or elected by the people. In those carried on 
by private persons the general rule is that those who furnish 
the capital determine the plan of organization and make the 
selection of leaders. In cooperative enterprises those who are 
served by the organization select their agents and direct their 
work. The United States now exhibits the greatest business 
combinations under private management that have ever been 
known. Ancient Peru affords an illustration of the most 
advanced governmental direction of industry that we have 
any account of. Under the despotism of the Incas a people 
completely isolated from all other civilized nations, without 
knowledge of letters or the use of iron, without horses or 
cattle or any of the modern mechanical inventions, tilled the 
soil, built temples and dwellings, roads, bridges and great 
stone aqueducts, wove fabrics for clothing and decorations, 
defended themselves against their savage neighbors and lived 
hi plenty and security. The government was one great busi- 
ness organization in which every officer had useful functions 
to perform for the general good. All were required to marry, 
and all were furnished homes and land to till. There were 
no landlords to collect rent, no usurers to extort interest, no 
promoters taking anticipated profits of labor, no exploiters 
monopolizing natural resources. Every one had his share of 
the land assigned to him each year and his share of the pro- 
ducts of the shearing of the flocks, and of the mines and the 
fisheries. There were no rich living from the labors of others, 
no paupers, no beggars, no prostitutes. With the added ad- 
vantages of modern inventions what would they have accomp- 
lished and how would they have lived? How much of their 
system could be successfully adapted to modern conditions 
under free institutions and among people who deny the di- 
vinity of all priestly establishments? If the tie of common 
brotherhood could be recognized by all in its fullness and 
entirety the difficulty might vanish, but unfortunately we are 
now very far from it. We are however rapidly breaking 



INTRODUCTION 47 

down the walls of prejudice that have so long separated and 
antagonized the nations with each other. Already there is a 
faint perception of a universal bond of human fellowship. 
The telegraph, telephone, printing press, railroad and steam- 
boat, make near neighbors of the most distant people. Busi- 
ness combinations are not confined within a city, county, state 
or nation, but some of them are world wide. Men of all races 
and nationalities unite their efforts in carrying them on. The 
International PostaUUnion transports and delivers mail in 
every part of the civilized world at the least possible expense. 
This is a purely public expedient, adopted and utilized by the 
governments of all the nations. It conducts the greatest busi- 
ness enterprise ever organized. The railroads are operated 
by the governments in some countries and by private corpora- 
tions in others. In Europe the telegraphs are mostly owned 
by the government. In the United States they are owned by 
private monopolies. We have transportation companies, 
manufacturing and mining companies in great number, among 
which are many which severally employ tens of thousands of 
men of all races gathered from all the quarters of the globe. 
We also have ship yards and other great establishments oper- 
ated by the government. Our great works in our harbors and 
rivers are carried on by the government, which also maintains 
lighthouses and life-saving stations. Public roads and bridges 
other than those used for railroads are built and maintained 
by the public. It is needless to multiply illustrations in order 
to show that great businesses may be carried on successfully 
either by the state, nation or private combinations. It is some- 
times assumed that there is a difference in the nature of the 
businesses which are successfully carried on by public authori- 
ties and of those under private management, but is there any 
fundamental distinction of kind? Is there in the nature of 
things an essential difference between the business of trans- 
porting and delivering packages weighing an ounce and those 
weighing one or ten pounds? Is there a fundamental differ- 
ence between the business carried on in a mail car and that in 
an express car? Is the business of transporting persons and 
property essentially different in its nature from that of carry- 



48 EVOLUTION OF GOVERNMENTS AND LAWS 

ing the mails? Is there an essential difference between the 
business of building ships for war and that of building them 
for commercial uses? Is there a difference of kind between 
the business of casting guns, making armor plate and gun 
carriages and that of making steel rails and railroad cars ? In 
producing and transporting military supplies of all kinds 
governments undertake and carry on any branch of business 
that seems necessary to meet the emergency. Under the pres- 
sure of war's exigencies they throw to the wind all nice 
theories concerning such matters and adopt such expedients 
and methods as seem best calculated at the time to accomplish 
the desired results. Is there a fundamental difference between 
the production of instruments of destruction and of those for 
beneficial use? Manifestly it is not a question of principle 
or morals but merely of expediency. It is for the law-making 
power to adopt whatever plan appears to be the best adapted 
to accomplish the public purposes. 

But what are public purposes as distinguished from private 
ones? Of late a distinction has been drawn between private 
businesses affected with a public use and those not so affected. 
Based on this distinction laws have been enacted providing 
for the regulation of some businesses affected with a public 
use, and the power to similarly regulate those not so affected 
has been denied. The specialization of industry makes all the 
people of a highly civilized state interdependent. All are de- 
pendent on the products of agriculture for subsistence. Re- 
striction of production may mean scarcity, high prices or 
famine. All are dependent on the manufacturers for cloth- 
ing and household goods. An abundance at low cost is de- 
sired by all consumers. Any combination, regulation or 
restriction on manufacturing activity that reduces production 
below the public requirements or artificially advances prices 
above a just compensation for the service is detrimental to the 
public interest. All are dependent on the mines for supplies 
of coal, oil and metals. Mining monopolies- through which 
unearned wealth is extorted from consumers are matters of 
public concern. It follows that the production of mineral 
wealth is a matter of general interest calling for legislative 



INTRODUCTION 49 

care. All are dependent on the railroads as well as the other 
highways of commerce, and on the telegraph and telephone 
as well as the mails for means of inter-communication. Sup- 
plies of food clothing and fuel are absolutely dependent on 
transportation facilities. Where then may a line be drawn 
between one part of these lines of business and the other 
distinguishing that affected with a public use from that not 
so affected? Can such a line be drawn elsewhere than be- 
tween all the productive activities on the one side and the 
nonproductive and destructive on the other? Is it possible 
to eliminate the parasitic classes, which now absorb so much 
of the products of industry, by fully protecting the useful ones 
against their methods? Could modern society eliminate its 
drones and barnacles with as great success as ancient Peru? 
The great moral purpose to be kept constantly in view by 
the law-making power is to bring about a constantly nearing 
approximation to conditions affording substantial justice be- 
tween all the people, individually and collectively, and the 
most ample provision for their physical, mental and moral wel- 
fare. Elsewhere than in ancient Peru the conduct of most 
productive enterprises has always been left under private 
management for private profit. In recent years business com- 
binations of all kinds, but more especially those engaged in 
transportation, manufacturing, mining and commerce have 
taken the form of private corporations. Capital, management, 
skill and labor are made the bases for the distribution of the 
gains of the common enterprise, with the result that the bur- 
dens and benefits are often most unequally distributed. It is 
the exclusion from these combinations of all altruistic im- 
pulses, the lack of human sympathy, that gives to some of 
them their cold and steely character. The managing power, 
the board of directors, is almost universally merely a repre- 
sentative of the stockholders, who have contributed the 
capital. Neither the employees nor the public have any repre- 
sentation in the management, nor any control over its policy. 
The employer seems to be the natural manager, and corpora- 
tions have developed along what appear to be natural lines. It 
is found, however, that corporations performing functions on 



50 EVOLUTION OF GOVERNMENTS MND LAWS 

which the public are dependent, and which are either natural 
or artificial monopolies, may become oppressive, and that 
owners may ignore not only altruism but justice and decency, 
When such conditions are presented the legislature is con- 
fronted with the practical question of finding an efficient 
remedy. Will it undertake to supervise and reform the ex- 
isting system or substitute a new one? Can it convert an 
oppressive, dishonestly managed corporation into a beneficent, 
honest one by supervising its operations ? Can public agencies 
be established of superior efficiency in place of the private 
ones? The modern trend of legislation in the United States 
is along lines of supervision rather than the direct assump- 
tion by the government of new business functions. This is 
attempted in two ways; by general laws designed to regulate 
charges for service to the public, imposing duties to be per- 
formed and forbidding harmful activities. The enforcement 
of such laws as to most classes of corporations and as to all 
classes in most cases is left to the courts by the usual methods. 
These imply a complaint on the part of the United States or 
a state for a violation of a penal statute, or of a private suitor 
for the enforcement of a right or the redress of a wrong. 
Where the controversy is between a powerful corporation and 
a private citizen of moderate means results are not satisfac- 
tory. The great corporation, by reason of the number of 
cases brought for and against it, is represented by attorneys 
and officers who become familiar, sometimes too familiar, 
with the judges. The private citizen is not ordinarily so rep- 
resented. Under such circumstances favoritism for the cor- 
poration is often charged, especially against judges holding 
by life tenure. On the other hand juries are more likely to 
incline toward the private citizen, and elective judges are 
often charged with seeking popular favor at the expense of 
unpopular corporations. Though the parties to such contro- 
versies are theoretically equal before the law, they are not so 
in fact. Recognizing the necessity for further interference 
on behalf of the public, Congress has provided for the in- 
spection and supervision of national banks by the Comptroller 
of the Currency, and the states have adopted a smilar system 



INTRODUCTION 51 

of regulating state banks through a bank commissioner. The 
states also provide a similar supervision of the business of 
insurance through their insurance departments. More re- 
cently Congress has provided the Interstate Commerce Com- 
mission for the regulation of the business of common carriers 
engaged in interstate commerce, and many of the states have 
similar commissions to supervise such carriers within the 
state. In a few states the functions of such commissions have 
been extended over various other public utilities. The func- 
tions exercised by these various commissions are usually 
classed as executive or administrative, but it is found by ex- 
perience that to be efficient and accomplish satisfactorily the 
purposes for which they are designed, it is necessary that 
they should also have other powers generally regarded as 
legislative and judicial. Numerous acts creating such com- 
missions have been declared unconstitutional on the ground 
that they combined and confused the powers of the three 
separate coordinate departments of the government. 

The purpose of mentioning these difficulties here is to show 
the general aspects of the question presented to the law- 
making power in dealing with great business combinations. 
The officers and commissions mentioned occupy a position in 
the governmental systems inferior to the legislative body, in- 
ferior to the courts and to the chief executive. The essence 
of despotism is the combination of all kinds of political power 
in the same hands without any superior power to prevent 
abuses. The advantages possible to be derived from the exer- 
cise of despotic power are promptness and efficiency. A com- 
mission authorized to make rules for the government of great 
business enterprises and to enforce them summarily is poten- 
tially capable of remedying the evils of corporate misconduct. 
The power merely to make an order which can only be en- 
forced by an executive officer after a trial and judgment of 
a court of original jurisdiction and a review in an appellate 
court according to the prevailing system is wholly inefficient 
for the control of great interests. Courts move altogether too 
slowly and deliberate quite too long to be efficient in meeting 
the exigencies of business in this manner. They are however 



52 EVOLUTION OF GOVERNMENTS AND LAWS 

much more efficient when acting through receivers appointed 
and removed by them at pleasure. The receiver takes 
full charge of the business and conducts it in accordance with 
the orders of the court with the very great advantage of the 
protection of the court against all outside interference. Courts 
acting through receivers in fact exercise precisely the same 
combination of powers deemed unconstitutional in the hands 
of commissions. If large combined powers are conferred on 
public agencies the spirit in which such powers will be exer- 
cised depends largely on the influences governing the selection 
of the men chosen for them. It has often happened that the 
public agents have been chosen by the very interests they 
were expected to regulate. Under every form of government 
from absolute despotism to democracy the men directly inter- 
ested in the exercise of any governmental function are usually 
the most active and influential in securing the appointment or 
election of agents to perform such functions. The richer and 
more powerful the combination of interests to be controlled 
the greater the influence on the selection of the agents and 
on their action afterward. It not only may happen but has 
happened many times that special interests have dictated the 
policy of one or both branches of Congress and of state legis- 
latures. The law-making power, designed to promote the 
welfare of all, in fact sometimes promotes the interests of the 
few at the expense of the many. It is readily apparent that 
combined powers somewhat despotic in character are poten- 
tially most useful, and also susceptible of the greater abuses. 
Where such powers are to be exercised only in supervising 
and correcting abuses in one or a few designated lines of 
business, and where the public agents exercising them are sub- 
ject to removal by the appointing power at will or after brief 
terms, the danger of abuse of them is not great. In all cases 
however they add to the public burdens the salaries and ex- 
penses of their offices. 

Where the government undertakes to perform new business 
function through its own agents the element of profit to pri- 
vate investors is eliminated and with it all private manage- 
ment and salaries of private corporate officers. The whole 



INTRODUCTION 53 

problem is simplified to the performance of the service and 
the collection of revenues to pay the expenses of it. The 
Post Office affords the leading illustration of a continuing 
great business conducted by the government, and the construc- 
tion of the Panama Canal of a great public work carried on 
by public agents at public expense. These functions are ex- 
ercised by a republic. The pyramids of Egypt, the walls and 
canals of Babylon and the Chinese wall are instances of vast 
enterprises carried to completion at public expense under des- 
potisms. The polity of ancient Peru exhibits the possibilities 
of a despotic government engaged in directing the useful ac- 
tivities of its people as well as its wars. It also shows how a 
clearly denned general purpose of promoting the general wel- 
fare and the systematic inculcation of the principles and 
knowledge necessary to the accomplishment of it, may over- 
come most of the evil tendencies of despotism and many of 
.those of popular governments. The great lack in Peru was of 
private initiative and invention. Freedom to effect voluntary 
combinations to accomplish lawful purposes is the foundation 
of modern business progress. The governmental and business 
organization of the United States and of the leading nations 
of the east is exceedingly complex, and most complex in the 
most advanced nations. Does improvement lie in the direc- 
tion of simplification or of further complications? The moral 
law, which is always above the legislature, commands the elim- 
ination of injustice and wrong and the promotion of the wel- 
fare of all. The law-makers must choose the expedients for 
the accomplishment of these ends. 

As the moral responsibility for his acts rests primarily with 
the individual, so the moral responsibility for the acts of men 
who combine as a corporation rests primarily with them and 
the agents they appoint. It is a practical question as to how 
far the state will take cognizance of the misdeeds and short- 
comings of private citizens, and the question concerning pri- 
vate corporations is similar if not identical in principle. It 
is impossible to remedy all evils. Experience and observation 
indicate the tasks which are most urgent and which the forces 
within the command of the state are capable of accomplishing. 



54 EVOLUTION OF GOVERNMENTS A'ND LAWS 

A consideration of prime importance is, what measure of 
integrity and capacity can the state provide for the given task. 
Theories of organization are highly important, but men with 
the capacity and disposition to carry them out are indispen- 
sable. The evils of autocracy arise mainly from the lack of 
those moral restraints on the conduct of officials which ac- 
countability to the people for their acts would impose. The 
leading evils connected with the dealings of great corporations 
are mainly due to the same lack of accountability. Their 
officers, agents and employees usually find their conduct ap- 
proved if it results in profit to the owners, without regard to 
its effects on others. In many cases no harm comes from ad- 
herence to this principle, because the corporation itself must 
struggle for existence and establish its moral character, but in 
the case of the great monopoly the evil may become unendur- 
able. 

Specialization implies interdependence as its inseparable 
concomitant. Where all the food is raised by one part of the 
people, all the clothing made by another part, fuel provided by 
another, and transportation by still another, while yet others 
minister to special wants in endless detail, it is folly for any- 
one to regard himself as independent of his fellows. There 
is not merely the moral bond of common brotherhood but also 
the material bond of common interest. Not only is there 
separation into so many diverse lines of industry, but in each 
of them there are many distinct parts requiring special train- 
ing, which only those so trained can fill, and the common pur- 
pose of all can only be accomplished by the cooperation of 
many, neither of whom could well perform the task of the 
other. Each wheel in the great human machine must revolve 
in its place and each cog must fit in its slot. In such a state 
of society some of the liberty of the individual must give 
way to the common needs. While modern combinations re- 
sult in subordination and in some instances in oppression ap- 
proximating slavery, and pride, arrogance, wastefulness and 
ostentation exceeding that of many petty despots, neither of 
these evils is a necessary incident of concert of action and in- 
terdependence of men. They are mainly due to a disregard 



INTRODUCTION 55 

of the moral law by those who rule the business. The law- 
makers are confronted with the task of eliminating these evils 
and enforcing the observance of the moral law in the appor- 
tionment of the burdens and benefits of common undertakings. 
Civilization is measured far more by the sum total of com- 
bined effort and interdependence than by the achievements of 
individuals acting separately. As it advances changes in the 
forms of association and in the activities of the combinations 
must take place. Militarism and all its wasteful and destruc- 
tive activities is being and must continue to be sloughed off 
and conserving and productive ones substituted. Legislation 
with reference to all such combinations must of necessity 
change with changing conditions. Finality in the form and 
use of expedients to accomplish legislative or business pur- 
poses is neither attainable nor desirable. It is idle to put 
forth any formula of words as a sure guide for future con- 
ditions. Ethical principles have permanence and should be 
inviolable; expedients are changeable and should have liberty. 
The beautiful ideal of a state of "liberty, equality and fra- 
ternity" is not to be abandoned as utterly worthless because 
of human imperfections or the savagery of men who have 
uttered the words without comprehension of their meaning, 
but the obstacles they interpose to its approximation are to be 
removed, surmounted or avoided by men to whom it is a 
guiding light through mazes of difficulty. New and yet un- 
tried expedients will continue in the future as they have been 
in the past to be shorter paths to richer fields. No one man 
will suggest all of them. The combined judgment of many 
will continue to be a safer guide in most cases than the 
separate views of any one. 

Judicial Functions 

The function of the judiciary is to apply the existing law 
to specific cases brought to the attention of the court or 
judicial officer in the prescribed manner. In every well or- 
dered state the rule enforced is assumed to be a pre-existing 
one. In disposing of a case of controverted right it devolves 
on the court to, first, determine the basis of fact on which 



56 EVOLUTION OF GOVERNMENTS AND LAWS 

the controversy arises; second, ascertain what principles of 
substantive law apply to the question presented by the facts, 
and third, render such judgment as the law applied to the 
facts requires. There is very great diversity of methods of 
doing this, ranging all the way from a summary hearing of 
the parties before a single judge, followed by an immediate 
judgment, to the elaborate system of procedure with its long 
list of technical rules of pleading and procedure and its suc- 
cessive retrials and appeals. Equal diversity has obtained in 
the constitution of courts and in the treatment of parties and 
witnesses. Summary methods prevail under despotisms with 
much disregard of law, and the extreme of prolixity and delay, 
amounting to substantial incapacity to make final disposition 
of a complicated case, is not uncommon in a great republic. 

The law-m.aking power establishes the courts, fixes their 
respective jurisdictions and provides how they shall be con- 
stituted. In a simple despotism the king is the final judge of 
all controversies and may exercise his powers in person or 
through whomsoever he pleases to designate. The first great 
stride toward liberty is the establishment of a court that is 
independent of the king, yet bound by the law. A full re- 
view of the composition of the diverse courts that have been 
established in the various countries at different times would 
be out of place here, but many of them will be found in the 
succeeding chapters. In English-speaking countries as well 
as many on the European continent courts of first instance, 
with power to determine all questions of fact and of law and 
render final judgment thereon, are made up of one or more 
judges, having or supposed to have expert knowledge of the 
law, and a jury of laymen, usually twelve in number. The 
parties are ordinarily bound to accept the situation and go to 
trial before the judge assigned to hold the court, but chal- 
lenges to the jurors are allowed both with and without the 
assignment of cause therefor. In criminal cases the selection 
of a jury often causes long delay and great expense, with a 
net result of great inconvenience and little, if any, good. The 
aim is to eliminate personal bias and prejudice, which is of 
course eminently desirable, but the means allowed is ab- 



INTRODUCTION 57 

surdly disproportioned to the evil it provides against. Sub- 
stantially all cases in all courts are conducted by lawyers who 
are employed and paid by the respective parties. Each of 
them must have passed the prescribed examination into his 
legal learning and made the requisite proof of moral char- 
acter. In the trial of a case he is the champion of his client, 
and his standing and income are dependent on success in win- 
ning cases for those who_employ him. Only in prosecutions 
for public offenses and cases to which the state or some po- 
litical subdivision of it is a party is an attorney present to 
represent the public. Every step taken in a cause is under the 
direction of a lawyer acting either as an advocate or judge, 
for the judges are all lawyers. While the parties ordinarily 
have the right to conduct their own cases, they seldom do so 
if the matter is of much importance. In general all questions 
of fact are finally determined in the court of first instance 
having general jurisdiction, or some inferior court. The ap- 
pellate courts are generally made up of several judges, and 
rarely have the attendance of a jury. In these courts ques- 
tions of law only are ordinarily determined. Litigants are 
by no means sure of a final disposition of their case after the 
decision of the court of first instance has been reviewed by 
the highest tribunal to which it can be carried, for in very 
many of them a new trial in the court of first instance is or- 
dered, and the case is again at the starting point with nothing 
settled but some proposition of law or procedure. The whole 
system of courts is required for the discharge of the full 
judicial functions of the state, but the courts of first instance 
make final disposition of a great majority of all the causes. 
The courts of last resort are only called on to decide certain 
exceptional classes of cases of which they are given original 
jurisdiction and such as are appealed from the lower courts. 
In some cases successive appeals from court to court are al- 
lowed, so that under certain conditions a case may be heard 
successively in four or five different grades of court. 

It is a fundamental principle of jurisprudence that courts 
do not take notice of any controversy till it is presented in the 
prescribed manner by a complaining party. In all but a few 



58 EVOLUTION OF GOVERNMENTS AND LAWS 

exceptional cases no action can be taken until notice has been 
given to the adverse party in the manner provided by law. 
It is a fundamental principle of justice as well as of law that 
all parties interested in any matter to be determined shall have 
fair notice of the claim made against them, of the time and 
place of every hearing in the case, reasonable time and op- 
portunity to attend, procure and produce evidence and present 
their versions of the facts, the questions involved and the 
law applicable thereto. These requirements furnish substan- 
tially all the basis there is for codes and rules of procedure. 
The primitive method is for the complaining party to summon 
his adversary to go with him before the judge, to there state 
his grievance and ask for redress, and for the defendant to 
then make his answer, and the judge to decide the matter 
after hearing the statements of witnesses or not, as appears 
necessary. There are no written pleadings, no rules of pro- 
cedure, no lawyers, little if any delay of the hearing and an 
immediate consideration and decision of the controversy, so 
that all concerned may act accordingly and go on with their 
business. This in substance was the procedure in the early 
days of Rome where the case was tried in the morning and 
decision required before sundown. It was adapted to a simple 
state of society. Much of the formalism and prolixity of 
modern court procedure is due to the complex nature of mod- 
ern business and modern theories and rules of rights to prop- 
erty. In a case affecting many widely scattered parties it is 
not possible to take all of them by the arm and lead them 
before the judge, nor would it be practicable to make an 
oral statement covering all the claims made against each of 
them. It is necessary to write it down, so that it will be 
definite and all may know just what the complaint is. The 
answer of a defendant may be equally full of details, and it is 
therefore equally necessary that it be written. This shows the 
need of written statements of claims, but it does not show any 
necessity for a long jargon of set phrases to express an idea 
which might be more clearly understood if written in a few 
common words, nor for senseless repetitions on a theory that 
each of a number of causes of action must be fully, technically 



INTRODUCTION 59 

and separately set forth. The technical accuracy of statement 
so strenuously demanded by most American lawyers is pal- 
pably absurd. All that serves any real purpose in the state- 
ment is the language that notifies the adverse party of the 
claim made. All elaboration beyond this is surplusage, and 
all mere jargon, such as is used to embellish bills in equity, is 
worse than useless. In England, where this extreme techni- 
cality in pleadings originated, a sensible system now prevails, 
and the rules governing equity cases in the federal courts of 
the United States have just been greatly simplified and im- 
proved but in many of the states the ancient forms are still 
observed. 

When a case is before a court with all parties duly notified 
of its pendency and fair statements made of the claims and 
defenses of all parties it would seem natural that the regula- 
tion of the details of the investigation into the facts and the 
application of the law should be left to the court and adapted 
to the situation presented. Instead of doing so in America 
there are elaborate codes of procedure restricting the joinder 
of causes of action and of parties, the defenses and counter- 
claims of the defendants and the manner of conducting the 
investigation. Numerous positive rules are declared govern- 
ing the successive steps in the progress of the case and its 
incidents and ancillary remedies. These rules are treated by 
the courts as of the same binding force as statutes of sub- 
stantive law, not only in the trial courts but in the reviewing 
courts as well. This often results in the decision of cases on 
mere lawyers' questions, having no connection with the real 
controversy between the parties, but which have been injected 
into the case by the lawyers in their efforts to gain advantage 
from the rules of procedure. The theory on which these rules 
are established is that they tend to a proper trial and a cor- 
rect decision. The fallacy lies in the assumption that the 
rules of procedure are so plain and easily followed that they 
will be helpful in the investigation. A few simple rules regu- 
lating the essential steps in the progress of the case are so, 
but a multiplicity of complex requirements is a snare which 
it is difficult to avoid. There is the same likelihood of differ- 



60 EVOLUTION OF GOVERNMENTS AND LAWS 

ent interpretations of rules of procedure as of rules of sub- 
stantive law, and every unnecessary positive requirement is 
sure to result in needless annoyance, delay, expense and in- 
justice. It is not possible to compel right decisions by mere 
rules of procedure, but it is possible to compel wrong ones, 
and this is in fact done in an appreciable part of the cases 
tried in the courts of the United States. 

A case being at issue on a disputed question of fact how 
shall the truth be ascertained? In cases tried by a jury the 
rule is that the jury answers to the facts and the court to the 
law, and in other cases the facts are determined either by the 
judge or a referee appointed by him. Methods of inquiry 
have been as varied as the human mind can conceive. Some 
are based on a superstitious belief in divine interposition to 
protect the innocent and punish the guilty. Such were the 
ancient English trials by ordeal. There was the fire ordeal 
performed by a person accused of crime by taking in his hand 
a piece of red hot iron, or by walking barefoot and blindfold 
over nine red-hot plowshares laid lengthwise at equal dis- 
tances. If he escaped unhurt he was adjudged innocent; if 
hurt guilty. The water ordeal was performed by plunging 
the bare arm up to the elbow in boiling water, or by throwing 
the accused into the water. If he was burned in the hot 
water or floated on the water he was guilty. There was also 
the ordeal of the scorned, trial by wager of battle and by the 
defendant waging his law, which he did by swearing to his 
defense and having his neighbors swear that they believed he 
told the truth. Similar superstitious tests of truth have been 
resorted to by many primitive people. In all well organized 
states both ancient and modern the usual method of ascer- 
taining the facts has been by taking the statements of wit- 
nesses. There is very great diversity, however, in the 
methods of taking the testimony, varying all the way from 
extracting it by torture on the rack under the Holy Inquisition, 
or with the bamboo in China, to the mere statement of the 
witness, uninfluenced by any other consideration than regard 
for the truth. In most countries a religious oath or admoni- 
tion of the penalties of perjury is imposed before taking the 



INTRODUCTION 61 

testimony. There is no country in which all the people have 
yet attained sufficient moral strength to entirely eliminate the 
danger of intentional falsehood. Moral delinquency of this 
kind varies all the way from the deliberate misstatement of 
a matter of fact to the mere failure to mention a minor cir- 
cumstance having some bearing on the issue as to which no 
pointed question compels a definite answer. Nevertheless 
an overwhelming majority of all the people of European 
stock are truth tellers by nature and habit, and in all the 
ordinary affairs of life in or out of court and with or without 
an oath their statements can be relied on whenever they are 
called on for information. A far more common and serious 
obstacle in the way of determining the facts is the unreliabil- 
ity of the testimony of witnesses due to inaccuracy of observa- 
tion and expression and defects of memory. These cause 
witnesses to the same occurrence to give very different ac- 
counts of it. Every infirmity in the organs of sense, in mental 
processes and in knowledge of language and power of ex- 
pression of the witness is liable to leave its mark on his state- 
ments. Passing from the infirmities of witnesses to those of 
jurors and judges we find that the testimony does not pro- 
duce the same impression on all of them, and that different 
ones reason to different conclusions from the same premises. 
Where witnesses contradict each other, one juror will believe 
one and another the other. The statement of one may be 
absolutely true, yet made with hesitation, as if in doubt, 
while the contradicting statement of the opposing witness may 
be given promptly and positively. By what token can the 
juror recognize the truth and detect the falsehood? 

These multifarious difficulties in arriving at the truth in 
judicial investigations have induced the law-makers and courts 
to adopt an elaborate system of rules of evidence. Some of 
these absolutely exclude witnesses bearing certain relations to 
the case or to the parties to it from testifying at all, or limit 
their testimony to certain exceptional matters. Others re- 
quire proof of certain facts to be made by a prescribed 
number of witnesses, or by a certain kind of evidence, as a 
written document executed in a prescribed manner, a record 



62 EVOLUTION OF GOVERNMENTS AND LAWS 

made in a particular office or a copy of it made by a desig- 
nated officer and certified to with the required formalities. 
Generally the title to land must be established by deeds in due 
form, but in many cases this is impossible and many excep- 
tions and modifications of the general rule are found neces- 
sary to prevent the most palpable injustice. Various contracts 
are required to be in writing in order to be enforced through 
the courts, on the theory that frauds will be perpetrated in 
the absence of the requirement, yet to prevent frauds result- 
ing from the requirement numerous exceptions are made. In 
England and the United States until very recent times per- 
sons charged with crimes were allowed to confess guilt and 
receive their punishment without other proof, but were not 
permitted to testify at the trial. Torture to extract confes- 
sions of guilt has been and still is a favorite method of get- 
ting evidence in many places. What is termed "sweating" is 
a mild form of torture still resorted to without authority of 
law in many places by over-zealous police officers. The in- 
herent difficulties in obtaining proof of crimes committed in 
secret tempt the officers to force the truth from those who 
know the facts. The torture is inflicted before trial on the 
assumption that the prisoner is guilty but will not admit it. 
The law now regards a person charged with crime as inno- 
cent until he confesses or is convicted, and in many states he 
is allowed to testify in his own behalf. As civilization and 
moral standards advance more reliance is placed on the truth- 
fulness and honesty of parties and witnesses and the arbi- 
trary rules, based on distrust of them, are abolished. Parties 
were formerly excluded from testifying on the theory that 
their interest in the case would cause them to lie. Wives 
were prohibited from testifying for their husbands. These 
restrictions are still retained in some states, but there is a 
marked tendency to do away with them and assume that even 
those most interested in the result of the trial will tell the 
truth in the great majority of cases. There has also been a 
corresponding relaxation of the rules relating to the recep- 
tion of private account books and other private writings as 
evidence. While there has been and still is ample basis for 



INTRODUCTION 63 

distrust in particular cases, it may well be doubted whether 
arbitrary rules excluding witnesses from testifying in any 
case tend in the right direction. The credibility of witnesses 
may well be affected by the considerations which have caused 
their exclusion, but it is grossly unjust to assume that all 
people will resort to falsehood to further their own interests 
or that a majority of them will do so. The natural obstacles 
in the way of the judicial search for truth cannot be removed 
by closing the doors" to any place where it may be found. 
Arbitrary rules may prohibit its discovery, but cannot pro- 
mote it. 

The controversy may be merely as to the facts, or as to 
the law, or as to both facts and law. Where the facts only 
are controverted and the parties are agreed as to the law 
applicable to them, the verdict of the jury or findings of fact 
by the court are followed by such judgment as they warrant. 
Where the parties disagree as to what the rules of substantive 
law are, or as to which of several acknowledged rules ap- 
plies to the facts as found or admitted, it is the province of 
the court to declare what the law is and which of its rules 
apply to the controversy. Where shall the judge look for a 
clear statement of the law? In China to the Penal Code, in 
India to the Code of Manu, in all Mohammedan countries to 
the Koran, in continental Europe to the compilations of Ro- 
man law made under Justinian and the modifications of it 
made by the law-making power of the particular nation, in 
England to the acts of Parliament and the reported decisions 
of the courts construing them or declaring the rules of the 
common law, and in the United States to the federal and 
state constitutions, to the acts of Congress and of the state 
legislatures, and to the decisions of the courts construing 
them and declaring the common law. There is not now and 
never has been in any country a code of written laws so 
plain in its terms as to be self-explanatory, or which provided 
rules directly applicable to every question presented to the 
courts for decision. The Koran, which perhaps has higher 
authority among Mohammedans than the code of any other 
people has with them, contains so few and meager rules that 



64 EVOLUTION OF GOVERNMENTS AND LAWS 

the judicial officers are forced to supplement them with others 
which they deem in accord with the spirit of the Koran. The 
wisdom of the prophet was not adequate to the future de- 
velopments of Mohammedan civilization. So it is with every 
code of laws, no matter how wise the author of it may be 
or how great his authority. Advancing and receding civiliza- 
tion each present new forms of human relation, activity and 
combination, new fields of enterprise and new forms of prop- 
erty. Old customs give way to new ones, and old standards 
of morality are superseded by better ones. Progress means 
change in the forms and purposes of human activity, and the 
law, which is merely the expression of legislative will or es- 
tablished custom, always lags behind the advanced thought 
of any age. 

In the United States the courts have to deal with many 
kinds of law emanating from different sources, and to 
determine which has controlling force in the case under 
consideration. The constitution of the United States is the 
supreme law to all courts, but its field is relatively very small 
and it affords rules to solve only a very few of the great 
number of questions to be answered. Acts of Congress 
passed under its authority rank next. The constitution of 
the state in which the court sits is next in authority. Most 
of the state constitutions cover more ground and are of more 
frequent application than the Federal Constitution. Acts of 
the state legislature which do not conflict with either state or 
national constitution or a valid act of Congress come next and 
cover a much wider field. While the whole volume of writ- 
ten law contained in constitutions and statutes is much smaller 
than that of the unwritten common law, it is within the 
power of the state legislatures to cover as much or as little 
of the field by statutes as they see fit. The task of ascertain- 
ing what the written law is is often one of great difficulty, ow- 
ing to different enactments made at different times, under 
different circumstances and for different purposes, which 
overlap and conflict as to details. In addition to the consti- 
tutional and statutory law there are treaties between nations 
having the effect of law, and the unwritten principles of in- 



INTRODUCTION 65 

ternational and admiralty law. Below all the foregoing there 
are municipal ordinances operative as local laws, and the by- 
laws of corporations and associations binding on their mem- 
bers. While the common law is spoken of as the unwritten 
law, it is looked for in printed books of reports of decisions of 
the courts in which its doctrines are discussed in endless de- 
tail and numberless cases. These cases are of various grades 
of authority and persuasive reasoning. Decisions of the Su- 
preme Court of the United States are binding on all courts in 
their construction of the Constitution of the United States 
and acts of Congress passed thereunder and as to all matters 
within its special province, but its answer to any question as 
to what the rules of the common law are have merely the 
persuasive force of the opinion of the highest court in the 
land. Similarly the decisions of the highest court of a state 
as to the law of the state, written or unwritten, is binding on 
all inferior tribunals of the state. The leading purpose of 
the people in providing reviewing courts is to procure and 
preserve uniformity of construction of statutes and constitu- 
tions, and uniform declarations of the rules of the unwritten 
law. It sometimes happens that the Supreme Court changes 
its views as to the rules of law and either overrules or ignores 
its own prior decision. This of course introduces confusion 
instead of preserving uniformity. When a prior decision is 
pointedly declared to have been a misstatement of the law and 
distinctly overruled lawyers and inferior courts may accept 
the last decision with a fair degree of assurance that the rule 
last announced will be adhered to in the future, but when a 
prior decision is merely ignored without comment confusion 
and uncertainty inevitably follow, for nobody can tell which 
precedent will be followed in the next case. Questions some- 
times arise which have not been decided by the court of high- 
est authority over the trial court. Resort is then had to the 
decisions of courts of other states for guidance. It sometimes 
happens that the court of one state resolves the doubt one 
way and another the other. Sometimes the courts of different 
states are about equally divided in number on each side, and 
sometimes the less number appear to be the best authorities. 



66 EVOLUTION OF GOVERNMENTS AND LAWS 

With all this multiplicity of sources of the law is it strange 
that courts of first instance, which have to deal with both 
the facts and the law are sometimes reversed by the reviewing 
courts? If mere complexity of the laws is an index of civili- 
zation, the United States is a highly civilized country. The 
publication of reports of the decisions of the reviewing courts 
goes on at the rate of something like two hundred volumes 
a year, and the number steadily increases. That there are so 
many is of itself some proof that the law is in an unsettled 
state. The truth is that the modern tendency to refinement 
and nice distinction has so obscured many wholesome general 
principles that the rule itself can no longer be applied with 
any fair degree of certainty or uniformity and is therefore 
thrown aside and one or another exception followed. It is 
manifest that the present system will ultimately fall of its 
own weight. Much of the public dissatisfaction with the 
methods of the courts and the delays and expense of litigation 
is chargeable, to the impossibility of a full consideration of the 
law in the trial courts. The trial judge can make only a 
cursory examination of authorities bearing on a nicely bal- 
anced question, while the reviewing court proceeds with great 
deliberation, and feels called on to state and apply the law 
with the utmost accuracy. Notwithstanding the vast accumu- 
lation of recorded precedents, new inventions, new combina- 
tions and new forms of contracts are presenting new questions 
to the courts. Though broad general principles may apply, 
the habit of seeking for identical precedents has become so 
fixed that courts hesitate to apply broad principles without the 
support of precedents of like cases. This extreme nicety leads 
rather to confusion than to certainty. Ordinarily the gen- 
eral principles are better guides and more easily followed than 
the similar precedents. In theory there is and always has 
been a rule of law applicable to and decisive of every contro- 
versy, else cases might arise which could not be determined. 
The judge must find a rule, whether it has ever been an- 
nounced or not. This is true in all countries and at all times. 
If every disagreement were submitted to the courts under 
the existing elaborate system they would be overwhelmed with 



INTRODUCTION 67 

such a mass of litigation that it would be utterly impossible 
to dispose of it. As it is the judicial mills are so full in many 
places that long delays amounting to a substantial denial of 
justice are inevitable. Fortunately the people themselves ad- 
just most of their differences without resort to the courts. 
Business is so conducted that but a very small part of the 
numberless transactions of commerce and employment give 
rise to any dispute. _Jfhe parties to them frequently agree on 
terms and adjustments of their affairs quite different from 
what the law would impose. The moral law, views of justice 
and fairness often induce one to give more than the law re- 
quires or the other party asks, or to accept less than such 
amount. As moral standards advance and altruistic impulses 
increase necessity for the exercise of judicial functions di- 
minishes. 

While the courts could do much to overcome the difficulties 
above outlined by improvement of their own methods, com- 
prehensive reforms can only be effected by the legislative 
power. Many branches of the law admit of world wide uni- 
formity, while others are of necessity local. The law of the 
high seas, which no nation owns, must be common to the navi- 
gators of all nations. The rules of commerce are susceptible 
of substantial uniformity, and the law of personal relations, 
though so long and grossly unjust, ought to be uniformly 
just throughout the world. Slavery has already met the con- 
demnation of all civilized people, and all other forms of op- 
pressive personal relations must give way to moral progress. 
Titles to land and rights of occupancy of it must of necessity 
be dependent in some measure on local conditions of soil, 
climate, market and pressure of population. The purposes, 
forms and extent of industrial and commercial combinations 
will always depend in some degree on such conditions and 
also on the habits, capacity and character of the population. 
There are already beginnings of a common law of the world, 
the principles of which are recognized by all civilized nations. 
With an advancing recognition of moral standards it becomes 
apparent that the relations of nations however distant and dis- 
similar should be regulated by law, and also that the law 



68 EVOLUTION OF GOVERNMENTS A)ND LAWS 

should be just. World wide reforms having the effect of 
amendments of the law of nations are being made through the 
instrumentality of conferences at the Hague and elsewhere of 
representatives of the nations, by treaties between different 
powers, and yet more by the dissemination of the principles 
of morality. Legislative bodies in all parts of the earth now 
take some notice of the laws of distant nations and shape 
their own acts with some reference to the light they get from 
abroad. The most marked evil tendency resulting from the 
imitation of foreign examples is in the drift of the peaceful 
nations of the east toward the vicious militarism of the west, 
but it seems reasonably certain that this evil will correct itself 
in the near future, and that the universal law will be a steady 
approximation toward the moral law. 

The evil of an unwieldy body of precedents, similar to that 
with which we are afflicted in the United States, existed in the 
Roman Empire in the time of Justinian, and was then met by 
a general codification. This, remedy could be applied with 
comparative ease under an autocrat, but with legislative 
powers apportioned between Congress and forty-eight state 
legislatures the practical difficulties appear almost insurmount- 
able. A start toward uniformity throughout the states has 
been made through the influence of the American Bar As- 
sociation and the Commissioners on Uniform State Laws, but 
anything approximating a general codification of the whole 
body of the law throughout the Union is not yet even fore- 
shadowed. Manifestly the widest practicable uniformity is 
eminently desirable. The obstacles to intercourse between 
residents of different parts of the country interposed by time 
and distance have been largely eliminated by modern inven- 
tions. The obstacles interposed by diverse laws can be elimi- 
nated by uniformity. The process by which this may be 
promoted is foreshadowed by the start already made by the 
Commissioners, taking one topic at a time and devoting ample 
time to it. More rapid progress might be made if the Com- 
missioners had more general recognition throughout the states 
and sufficient financial support to enable them to devote the 
necessary time to the work. In a period of invention and 



INTRODUCTION 69 

rapid changes of social, industrial and commercial combina- 
tions, a rigid code, purporting to cover the whole field of the 
law for the future, is neither practicable nor desirable, but it 
is possible and eminently desirable to codify those branches 
that admit of complete uniformity, like commercial law, and 
that wherever moraLprinciples are involved in the law on any 
subject the closest possible approximation to the just rule 
should be adopted and given the most ample application. 

The states acting separately may make substantial progress 
in simplifying the laws of local application by codification by 
topic of these subjects. Of course all uniform state laws, 
however formulated, would only become effective on their 
adoption by the state legislature and would appear in the 
statute books merely as laws of the state. The value of a 
codification would be dependent in some measure on the de- 
gree of permanence attaching to the rules contained in it, but 
it has the advantage of classification and orderly arrange- 
ment, and tends to clearness in case of subsequent amend- 
ments. These are matters of great importance in simplifying 
the labors of the judge. When the rules of substantive law 
are scattered through numberless volumes under all sorts of 
classification and headings, he can never know that his in- 
vestigation has quite covered the whole subject. With a com- 
plete codification of any topic he might feel a fair degree of 
assurance that he had all the law he required before him. 
After the best possible codification of existing law has been 
made there will still remain the experimental field of new 
subjects and radical changes of old ones, of new public enter- 
prises and new private schemes requiring regulation. 

All questions of fact and of law which are determined by 
the judges are resolved by the opinion of the majority of 
them, but in most states the determination of a question of 
fact by a jury of twelve requires the concurrence of all. This 
is most illogical and productive of great expense, inconven- 
ience and delay in a considerable part of the difficult cases. 
In criminal cases subjecting a defendant to vindictive punish- 
ment it is merciful to require unanimity, but in civil cases the 
concurrence of three-fourths is ample, and it would be equally 



70 EVOLUTION OF GOVERNMENTS AND LAWS 

safe in criminal cases prosecuted with a view to the welfare of 
the defendant as well as the public. 

In many states new trials of all the issues are granted for 
reasons affecting only one or more of them. Where this is 
done the first trial goes for nothing, when logically it should 
settle all issues as to which there has been a fair and full trial 
and clear finding. 

Successive appeals ought not to be allowed in any case. 
The evil consequences of them far outweigh the general 
benefit. 

Questions as to the constitutionality of statutes ought to be 
settled in advance of the private litigation under them, and in 
a proceeding in which the public is represented. It causes 
contempt of the legislative authority to require private citi- 
zens to determine for themselves when an act of Congress or 
a state legislature is valid, and, having acted in the belief that 
it is valid, to be called on to defend it through a series of 
courts and suffer loss at the end because the court of last 
resort holds it invalid. 

The new constitution of Poland prohibits the courts from 
inquiring into the validity of a duly promulgated statute, and 
the constitution of Czecho-Slovakia provides for a constitu- 
tional court to pass on the validity of statutes. 

Executive Functions 

In the evolution of government from chaotic liberty the 
first function to be developed is the executive. It is usually ex- 
ercised in leading war parties, hunting or fishing expeditions, 
and in such manner as accords with the character, customs and 
purposes of the tribe. Combined with it are such crude be- 
ginnings of legislative and judicial functions as the situation 
requires, all assumed ordinarily by a single leader. The next 
function taking separate form is the legislative, usually ex- 
ercised by a general council of the tribe or the elders or heads 
of families in it. Representative legislative bodies chosen by 
the people are a very late development of advanced civiliza- 
tion. Judicial functions are exercised by the king in person 
in a small despotism, and in larger ones by persons appointed 



INTRODUCTION 71 

by him to act in his stead. The Greeks and Romans give us 
the earliest known well defined division of powers among the 
three departments of government. This division now obtains 
throughout Europe as well as America, and is being extended 
into Asia. The separation of executive, legislative and ju- 
dicial functions is nowhere complete. In most monarchical 
countries the chief executive officers under the crown take the 
initiative in the most important legislation and have a voice 
in the deliberations of the Parliament, and all laws require 
the approval of the king. In Great Britain the ministry exer- 
cise the executive functions with no substantial interference 
from the king. They are always in accord with the majority 
in Parliament, for whenever they cease to be so a new cabinet 
is formed and the House of Commons is usually dissolved 
and new members elected. In all countries, where there is a 
separation of executive and legislative powers, it is necessary 
that the executive departments report to the legislative the 
needs of the public service and submit estimates of the moneys 
required for each and the requirements of men for military, 
naval and civil service. 

In the United States the president and the governors of the 
states make recommendations respectively to Congress and to 
the legislatures through written messages, but are not allowed 
to take any part in their deliberations ; nor are any other ex- 
ecutive officers entitled to do so. The President has a veto 
on acts of Congress, but this may be overriden by a vote of 
two-thirds of each house and the law enacted without his sanc- 
tion. Similar rules apply to the governors and state legisla- 
tures. The influence of the chief executive under the system 
of political parties which has prevailed from early times de- 
pends on whether his party is in the majority in the two houses 
of Congress, or the legislature of his state. When the ex- 
ecutive is in political accord with the majority in both houses 
his influence is usually very potent in shaping legislation ; when 
he is not his influence over appropriations of money may still 
be great through estimates of the public needs, but as to other 
matters of legislation it may be very small. In this particular 
the system is lacking in efficiency and ultra conservative. 



72 EVOLUTION OF GOVERNMENTS AND LAWS 

While judicial power has been taken away from chief ex- 
ecutives in all civilized nations, the appointment of the judges 
is still a function of the chief executive in Europe, and for 
the federal courts in the United States and the state courts 
of some of the states. In others they are chosen by the legis- 
lature, but in most of the states they are now elected by the 
people. The judicial function of trying impeachments of 
presidents and other civil officers of the United States, includ- 
ing judges of the federal courts, is vested in the senate of 
the United States, and of the governors and other state offi- 
cers in the state senates. Impeachment by charges preferred 
by the lower legislative body and tried by the upper is not an 
efficient method of punishing public officers for misfeasance 
in office. It may be wise to have so conservative a remedy in 
the case of the president and vice-president, but as to all other 
officers it is an impracticable scheme. 

The executive head of every country, by whatever name he 
may be called, is always commander in chief of the army and 
navy and the representative of the nation in all dealings with 
foreign nations. All civil as well as military officers, except 
such as are made elective by the legislature or by popular vote, 
are also appointed by the chief executive. While the law- 
making power levies the taxes and gives general directions 
for its appropriation, it is the executive officers who collect 
the money and use it. By reason of its control of appoint- 
ments to office, of the expenditure of public funds and its 
daily contact with the people in the transaction of the public 
business, the executive department exerts a powerful influence 
both on the legislative department and public sentiment. 
Theoretically in the United States it is subject to the direc- 
tion of the legislative and judicial branches of the government 
acting within their respective spheres. It is subject to the 
laws, and executive officers are bound to carry the judgments 
of the courts into execution. They are liable to trial and 
punishment by the courts for their violations of law and 
duty, and in some instances in some of the states to removal 
from office by them. The vast executive powers of the general 
government of the United States are concentrated in the 



INTRODUCTION 73 

President. The heads of the executive departments are ap- 
pointed by him and are his advisers, but they hold office during 
his pleasure only, and he has power to remove them and ap- 
point others at will. The states have a far less forceful ex- 
ecutive head. In most of them the chief executive officers 
other than the governor are also elected by the people, and 
are not subject to removal by him. The greatly superior 
efficiency of the federal plan has not yet induced the states to 
model their executive departments after it. 

In the discharge of executive duties it often becomes neces- 
sary to determine questions of fact preliminary to the per- 
formance of a duty. This the executive officer who is called 
on to act does summarily in his own way, usually without any 
formal trial. Perhaps the most important instances occur in 
matters affecting the friendly relations of the country with a 
foreign power. The protection of citizens temporarily in 
foreign states frequently makes it necessary to inquire into 
transactions occurring in remote parts of the earth. In 
exercising the pardoning power an inquiry into the character 
and conduct of the applicant for mercy closely analogous to a 
judicial trial of a question of fact is necessary, though the 
proceeding is wholly discretionary with the executive in most 
states and countries. 

The moral progress of the world is exhibited by the steady 
and rapid evolution of executive departments into agencies 
for the discharge of useful peaceful functions, and the ten- 
dency to slough off the baneful military activities. While in- 
ventions of destructive agents and instruments have kept pace 
with the inventions of useful ones, and while the nations still 
waste their energies, their substance and their men in need- 
less and vicious armaments and war preparations, the utter 
immorality of aggressive wars is recognized, and the exec- 
utives of all advanced states feel the restraining influences of 
an advancing morality which condemns war. 

Checks and Balances of Governmental Powers 
Much has been said by writers on political economy in com- 
mendation of the plan of restraining each branch of the gov- 
ernment within its useful field by placing a countervailing 



74 EVOLUTION OF GOVERNMENTS AiND LAWS 

power in another branch, and there can be no doubt of the 
value of such balances of power. Nevertheless the ultimate 
effective checks must always remain with the general body of 
citizens and be kept alive by education and an active public 
sentiment; else they soon lose all potency. The true theory 
of all official power is that of agency to do particular things, 
not of a general agency subject only to a few special limi- 
tations. The balancing of powers by constituting different 
agencies to act as checks on each other has been tried often 
and in a great variety of ways, but nowhere with ideal results. 
The Chinese imperial system, so far as all officers under the 
emperor were concerned, was based on this idea, but corrup- 
tion and inefficiency were the rule rather than the exception. 
Rome set tribunes against consuls and massed plebs against 
patres, yet the senate continued to rule till overawed by the 
legions under military leaders. A government of limited 
powers exercised for short periods by persons taken from and 
returned to the general mass of citizens is least dangerous to 
liberty. The objections to it are lack of continuity of pur- 
pose and efficiency. In a country where ignorance and im- 
morality prevail these objections are valid. Liberty and order 
are impossible without self-restraint exercised voluntarily by 
the great majority of the people. Education is by all odds 
the most potent factor in maintaining any governmental sys- 
tem. This is more clearly illustrated by the Asiatic govern- 
ments than by the European, where illiteracy has prevailed 
until very recent times with the exception of the Greek and 
Roman periods. A definite system of education in law, re- 
ligion and social organization, enforced as a divine ordinance, 
has moulded the character of all Hindoo society for thousands 
of years. The Mohammedan system has been similarly pro- 
pagated. The Chinese books and teachers have played an 
equally important part in preserving the peculiar institutions 
of that country and securing obedience to much that appears 
to Europeans as unqualifiedly bad. Europe and America have 
also been greatly influenced by the teachings of the Bible, also 
of Asiatic origin, which have been accepted as religious truth, 
but not as a guide in the formation of governments, or a sys- 



INTRODUCTION 75 

tern of laws to be administered in the courts. In this it will 
be seen that the use of the Bible as a sacred book is somewhat 
anomalous, for the Koran and the Code of Manu are of the 
highest authority as books of law in all courts where their 
religious authority is accepted. The morals of the Old Testa- 
ment are discarded as too low for this age. The Christian 
conception of universal love for all humanity indicates the 
ideal social condition, without elaborating the details of the 
application of it to the particulars of human conduct. Love 
as a passion is not universal, but partial, responding to in- 
fluences not always readily comprehended. Though capable 
of stimulation by education, its mainspring rests in the seat of 
the emotions of the person. The heart responds to impulses 
that no one can wholly control. If all could be induced to act 
as love for each and all would dictate, the destructive and 
corrective functions of government would be eliminated at 
once, for there would be nothing left on which to act. Wars 
would cease, and those who now commit crimes would be 
wholly absorbed in harmless activities, beneficial to themselves 
or to others. Government in its sinister, meddlesome and 
cruel sense might at once be dispensed with. But this would 
not do away with the necessity for social organization. Great 
numbers cannot act in concert for their mutual benefit with- 
out rules governing the conduct of each and an apportionment 
of duties. Schools for the instruction of all in the rudiments 
of letters, science and the arts and special instruction for 
each to qualify him for his particular part in life will always 
be necessary. Until the ideal Christian spirit is universal it 
will continue to be necessary for the people to guard against 
abuses of governmental powers. The idea of official checks 
balancing each other is based on the theory of a governmental 
force above the people. Unless those for whom powers are 
exercised are capable of approving or condemning the acts of 
their agents according to their merits, it is idle to expect one 
set of officials to protect the people effectively against an- 
other. It is quite too easy for the two sets, chosen to watch 
each other, to combine for their common advantage against 
the general public. History is full of such combinations in 
the United States as well as in China. 



76 EVOLUTION OF GOVERNMENTS AJND LAWS 

General Purposes of Government 

The central idea of government is an organization through 
which the combined force of many may be exerted. The ob- 
jects to be accomplished by the use of this force may be bene- 
ficial to all, to a few or to one alone, and they may benefit all 
or a part, but in unequal degrees. Where the government 
takes the form of an unlimited monarchy, the ruler has the 
power to take for himself and his favorities all of the bene- 
fits, and to place all of the burdens on ,the multitude. The 
monarch may desire the general welfare of his subjects, and 
may promote it in some ways, but the maintenance of his 
authority is dependent on suppressing popular impulses in 
public affairs. The average man magnifies his own merits 
and importance and minimizes those of others. He also sym- 
pathizes most with those near him. So it inevitably comes 
about in a despotism that the monarch and his favorites en- 
gross the benefits of the state's power, and by a law of moral 
compensation the excessive advantages enjoyed curse the favo- 
rites with low moral standards and such consequences as 
naturally result from them. Where the form of the govern- 
ment is that of an aristocracy, the beneficiaries may be more 
numerous, though not necessarily so. Where they act in con- 
cert the result is much the same as in the case of the despot- 
ism, but there are more heads to be gratified, and the rapacity 
of each is liable to encounter some resistance from the others. 
The proletariat are still without power to enforce their rights. 
In popular governments the theory is that powers are delegated 
to public servants, to be used for the benefit of all, and that 
the benefits and burdens of government are impartially dis- 
tributed. An art, however, corresponding to that of the 
courtiers, develops in the republic, and through specious pre- 
texts crafty men employ the powers of the state for their own 
enrichment in different ways, but with results similar to those 
of the courtier's fawnings. The form of the government does 
not eliminate the disposition to be unjust, nor are the balances 
of powers so adjusted as to enable the many who bear the 
burdens to effectually curb the rapacity of those who gain un- 



INTRODUCTION 77 

merited favors from legislatures, courts and administrative 
officers. Arbitrary laws sanctioning slavery, land monopoly, 
and special privileges in trade, transportation, manufacturing, 
mining and supplying various needs of the public, work out 
systems of favoritism and oppression. These are aside from 
the direct exercises of the powers of the government for the 
enrichment of the officials and their friends. Even in the 
best ordered republic the taxing power is exercised to some 
extent merely to favor a few persons. 

The prudent individual seeks to mark out for himself a line 
of conduct reaching through some or all of the balance of his 
life, which he believes will conduce to his future welfare. He 
does best who follows a course which tends to continually 
make him stronger, better and happier. Close observance of 
the moral law and of every precept of it will generally tend 
to a long life of increasing enjoyment. Neglect of the needs 
of the body induces weakness and disease, neglect of the mind, 
ignorance and dependence; idleness and wastefulness poverty; 
hatred and envy, enmity and suffering. On the other hand 
the performance of every duty to himself and to others tends 
to health, prosperity and happiness. The rules by which the 
individual governs his own conduct are the product of his 
education, environment and native mental force. He may 
observe them steadily or spasmodically with corresponding 
results, but death ends the accessible record of success, failure, 
pleasure and pain. The state seeks to direct the destinies of 
many people. Its legitimate object is essentially similar to 
that of the private person, that is to promote the welfare and 
increase the happiness of its citizens, but it has no fixed limit 
of numbers of persons affected or duration of its influence. 
To accomplish this result it must cause the observance by the 
people of those rules of conduct which tend to propagate con- 
ditions favorable to human happiness, and to eliminate conduct 
destructive in its tendencies. The state looks not merely to 
the welfare of persons now living, but of the race in future 
generations. Its rules therefore must have a wider range of 
present application and look forward to more remote conse- 
quences. Though immoral conduct may appear profitable for 



78 EVOLUTION OF GOVERNMENTS AND LAWS 

short periods and to a limited class, time surely discloses its 
destructiveness. Bentham's test of utility, given general ap- 
plication to all alike and carried to its remote consequences, is 
a test of morality. His measurement of utility by the pleasure 
or pain produced may admit of more doubt, for the dividing 
line between sensations of pleasure and of pain is often in- 
capable of ascertainment, and disagreeable sensation seem es- 
sential to our vital processes. Life, health, strength, knowl- 
edge, beauty, abundance of usable things, the love of friends 
and good will of all, are generally regarded as desirable. 
There are certain lines of conduct that tend to produce and 
preserve these blessings. There are others that prove destruc- 
tive of them. It would seem that the legitimate function of 
the state is to search out and declare as substantive law what 
rules of conduct are beneficial in their tendencies, and what 
are destructive, and to devise governmental machinery de- 
signed to induce observance of the former and avoidance of 
the latter, and that moral improvement and material advance- 
ment should continually accrue as the product of legislative 
wisdom and foresight. To what extent such functions have 
been recognized and exercised by the governments of the 
leading nations of the earth is one of the main subjects of our 
inquiry. It will be found that the organized forces of society, 
especially in the hands of a single ruler, are often exerted to 
destroy, rather than to build up, and that all the nations of 
the earth look to armies and navies as means of gain and 
preservation, rather than to the cultivation of those firm bonds 
of friendship which are indispensable to peaceful relations. 

The rule of progress is good for evil, kindness to overcome 
hatred. Viewed merely as a cold and passionless artificial 
being, the true mission of the state is, and always must be, 
to keep people from harming each other, and to lead them to 
move in concord in the accomplishment of purposes beneficial 
to all. If all were fully employed in moral pursuits, crime 
would disappear as a necessary result. 

Selfishness has its root in our natures, and care for self 
is a moral duty. Care for our progeny is both a privilege 
and a duty, and affords one of the most powerful incentives 



INTRODUCTION 79 

to the accumulation of wealth and mastery over others. In 
the struggle to gain these many parents fail to comprehend 
the relative value of mere inherited wealth and of favorable 
conditions for their children to live natural useful lives. It 
is only when we clearly perceive that the welfare of our 
progeny is inevitably locked with that of the descendants of 
our neighbors, and that the only safety for any lies in high 
moral standards, justice to all, and the growth and extension 
of kindness both as a sentiment and a recognized rule of 
conduct, essential to human happiness, that it is possible to 
make the best provision for future generations. Instead of 
starting life with great wealth and a contempt for useful 
labor, it is far better for any normal healthy child to be 
trained to do his part and bear his share of the burdens of 
life, and taught that the largest and best life is that which 
accomplishes most for the good of others. 

Not to destroy enemies by war, but to destroy enmity by 
kindness and friendly intercourse; not to punish criminals, 
but to eliminate crime by inducing right conduct ; not to force 
the unwilling performance of duty, but to lead men to vol- 
untarily follow high moral standards for the joy of well 
doing; not to enforce obedience to the arbitrary will of rulers, 
but to induce the acceptance of such direction as is essential 
to concert of action; not to stifle individual liberty, but to 
encourage and protect in all worthy efforts and enterprises, 
are the ideal purposes of governments and laws. How the 
nations of the earth have been afflicted with ignorance of 
these fundamental truths, how those in authority have dis- 
regarded them, and how the people have suffered by reason 
thereof, we shall see in our brief review of the rise and fall 
of states, and the principles by which they have been governed. 



CHAPTER I 

Unorganized Tribes 

In the lowest social state we find individual liberty wholly 
unrestrained. The weak and despicable Digger Indians, 
dwelling in rocky and desert places, feeding on the most 
disgusting fare, though they have chiefs in accordance with 
the customs of the more vigorous branches of the /Utah 
family, recognize no authority in them, and each individual 
follows the dictates of his own torpid will. 

The lower Calif ornians did not differ greatly from the 
Diggers in modes of life, though living under more favor- 
able surroundings and exhibiting more providence in the 
manufacture of weapons and utensils. With well formed and 
vigorous bodies and not wanting in courage, they lived with- 
out habitations, government or laws and paired off at pleasure 
without a conception of the marriage relation. The Yaghans 
of Tierra Del Fuego, living in a most inhospitable clime and 
under circumstances rendering concert of action indispensable 
to even a small degree of comfort, yet dwell apart, each family 
by itself, naked and without shelter, recognizing neither chief 
nor laws and feeding on their own kind. 

The Eskimos on the inhospitable shore of the Arctic Ocean, 
though far superior in industry, intelligence and nearly every- 
thing else, except cleanliness, are also said to recognize no 
authority. Probably this is due to the necessity for living in 
very small villages, owing to the barrenness of the country 
and the peculiar climatic conditions under which they live. 
The long night of winter prevents intercourse with others 
living at a distance and effectually isolates each group. Dur- 
ing the brief but busy summer, hunting and fishing occupy 
their attention. For this concert of action in great numbers 
is not advantageous. More can be accomplished by separat- 
ing than by combining. Isolated from the balance of the 

80 



UNORGANIZED TRIBES 81 

world and having little to excite the cupidity of others, they 
are not often forced to fight, but they are reputed courageous 
and vigorous when put to the test. 

It appears that life in the hunter or fisher state tends to 
individuality and the absence of social organization. It is 
believed that no instance can be cited of a race of people, 
living exclusively from hunting or fishing and the spontan- 
eous products of the earth, that has passed the stage of simple 
tribal organization. Though the civilized man can readily 
perceive the advantages that might accrue to them from con- 
cert of action, conditions are not such as to develop it, and 
probably, if once developed, any form of extensive organiza- 
tion would soon fall in pieces without a marked change in 
the habits of the people. Among the very lowest promiscu- 
ous intercourse is the rule, and the whole burden of rearing 
the young is cast on the mother. In a great majority of in- 
stances, where a permanent relation is recognized as existing 
between the man and woman, the latter is treated as a slave 
and forced to bear his burdens as well as her own and those 
of her offspring. 1 

The natives of Australia appear to have been below the 
average of the American Indians in most respects. It is said 
that they did not till the soil at all, their habitations were of 
the most crude and temporary character, being mostly of bark 
or brush. In the manufacture of weapons and implements 
they exhibited little skill or ingenuity, having no knowledge 
of metals or skill in weaving fabrics. They did not know the 
use of the bow and arrow, the almost universal weapon of 
primitive man, yet the boomerang, a most curious invention 
unknown elsewhere, is their peculiar weapon. In government 
they do not appear to have ever advanced beyond the tribal 
stage, with very little power in their chiefs. As with most 
savages the women are oppressed and enslaved by the men 
and family ties are very weak. 

In attempting a close study of the development of the first 

1 For a more full statement of the various customs cencerning the rela- 
tions of the sexes see Brissaud's "History of French Private Law." Con- 
tinental Legal History Series, Vol. 3, p. 1. 



82 EVOLUTION OF GOVERNMENTS AND LAWS 

steps toward the formation of a government, we are met by 
a surprising complication of difficulties. Savage tribes can 
furnish no accurate history of their own development. The 
moment they are brought into close contact with superior 
people, the course of their development is affected to a greater 
or less degree by the extraneous influences to which they are 
subjected. Habits of life, fashions in dress and modes of 
warfare are quickly adapted to new conditions. Thus in 
America those who describe the Comanche Indian place him 
on horseback, though the horse was first brought here by the 
white man. Blankets and beads were worn by the natives of 
the eastern and middle states long before the revolutionary 
war, and a description of an Indian costume without them 
was hardly complete, though the material came from Europe. 
Guns and knives soon supplanted bows and tomahawks. 
Again the wars and migrations of tribes, the changing con- 
ditions and vicissitudes under which they lived, afford no op- 
portunity to study a continuing development of a particular 
tribe or nation. 

Few if any American Indians can now be found whose 
character, customs and even tribal organizations have not been 
changed and moulded by the influence of the whites. Those 
that have remained near their ancestral homes have little left 
of the character or habits of their wild ancestors. Those 
that have been removed to western reservations have also felt 
the effects of the teachings and examples of the whites, often 
to their destruction. This frequent and extreme subjection 
to vicissitudes is, however, a characteristic of the savage state, 
and no one need ever hope for an opportunity to calmly study 
the development of any savage people, uncontaminated by 
contact with more civilized people for many consecutive gen- 
erations. The reason for this is plain. Steady development 
demands steady conditions. Not only were the Indian tribes 
subject to destruction at the hands of their enemies, but their 
indolence and improvidence left them constantly liable to 
famine, which often depopulated their villages. 

The rudimentary society is always domestic in character, 
but usually it is the rule of the strong male over the female 



UNORGANIZED TRIBES 83 

slave. In all quarters of the globe warlike savages have been 
accustomed to enslave prisoners whom they did not kill. Yet 
the custom of adopting even prisoners of war to whom the 
captor chances to take a liking is not uncommon. This was 
the settled policy of the Iroquois and a great source of 
strength. The slavery is generally temporary in character, 
resulting soon in death or emancipation of the slave. The 
habits of life of the savage are not such as to admit of the 
propagation and preservation of a servile race. In our efforts 
to generalize the earliest appearances of social organization, 
we are liable to take up a preconceived theory and proceed 
with a smooth and logical narration of orderly development. 
But, when we attempt to cite authorities and demonstrate the 
correctness of our theories from known instances, we are 
met with innumerable perplexities and apparent contradic- 
tions. Observers who are ignorant of the language of the 
people they attempt to describe often give most unsatisfactory 
accounts. They report what they see and often fill out their 
descriptions with what they infer to be true. But as we pro- 
ceed we shall find that these difficulties attend the study of 
the development of governments in all forms and stages in a 
marked degree, and that the human capacity and desire to 
choose and invent leads to most perplexing want of uniform- 
ity in the development of social order. While the earliest 
form of mastery and rulership of a permanent character ap- 
pears to be domestic and a personal mastery of one over an- 
other, the next step generally has its foundation in war. 

Under conditions of isolation it is possible for a tribe to 
make much progress in industry without developing a govern- 
mental system. 

The Ifugaos, a head-hunting tribe classed as of Malay stock, 
inhabiting a mountainous district of northern Luzon, num- 
bering about 120,000, have no trace of political, judicial or 
priestly government, yet have constructed and maintained 
from remote antiquity the most extensive and admirable system 
of mountain terraces for rice culture to be found anywhere in 
the world, the one in the Benue valley being 12 kilometers long 
without a break with some of the terrace walls 60 feet high, 



84 EVOLUTION OF GOVERNMENTS AND LAWS 

and that in the Asin valley having no rows of terraces from 
the river to the top. These terraced fields are irrigated from 
the mountain streams and cultivated with great industry and 
skill. They are not tribal property, but privately owned in 
unequal parts, some members of the tribe being rich and others 
poor. Though they have no written language, rights to prop- 
erty and domestic relations are regulated by a fairly complete 
set of customary laws and taboos, transmitted orally from 
generation to generation. Penalties are also imposed for 
various offenses. For their enforcement these laws are de- 
pendent on the general sentiment of the people and the active 
force of the family of the injured or offended party. The 
nearest approach to an official is the go-between, who under- 
takes by negotiation, persuasion or threats to bring about the 
settlement of such controversies as he is called on to deal with. 
In the last resort the family of the wronged party uses the 
spear, but it is said that loss of life by violence of all descrip- 
tions is not nearly so great as among the people of the United 
States. 

The surprising thing about these people is that with so much 
industry, thrift and private wealth as they have, they are, and 
so far as known always have been, without any governmental 
machinery to protect owners in their property rights. The 
general rule the world over seems to be that some form of 
governmental protection goes along with private wealth. This 
tribe proves that the laws of an isolated tribe, generally known 
and understood by the people, may regulate their social and 
property rights without the aid of courts or other governmental 
machinery. Laws like many of our municipal regulations, 
which are neither known to or observed by the people general- 
ly, are of very doubtful value, however much governmental 
machinery may be devised for their enforcement. 1 

Authorities 
Bancroft : Native Races of the Pacific States. 
Schoolcraft : Indian Tribes of the United States. 
Encyclopaedia Britannica — passim. 

1 Ifugao Law, Barton, University of California Press. 



CHAPTER II 

Tribal Organizations and Simple Despotisms 

Passing from our imperfect view of the most low and 
repulsive specimens of human beings to those possessing more 
intelligence and exhibiting tendencies toward social organi- 
zations, we find everywhere that customs, superstitions and 
fashions precede governments and laws. The tribal organi- 
zations of hunters and fishers do not possess the true at- 
tributes of government, in the sense in which it is used by 
civilized man, to as great an extent as one of the many great 
corporations of modern times. The authority of the chiefs 
is hardly more than advisory. Matters affecting the tribe are 
usually determined by public assemblies, and war parties are 
made up of volunteers who submit to neither discipline nor 
command. Yet everywhere and even among the very lowest, 
customs, ceremonies and fashions are found to exist, the ob- 
servance of which is compelled by public sentiment. These 
are often most cruel and unnatural. Let us examine some of 
them. 

The custom of perforating the lips, nose and ears, of cut- 
ting off fingers, making incisions in the flesh and inserting 
most unsightly ornaments in lips, nose and ears is common 
with more or less variation among American Indians, Afri- 
can tribes and Polynesians. Thus the Thlinkeet women slit 
the under lip and gradually enlarge the opening until a large 
block of wood is inserted from two to six inches in length and 
from one to four inches in width and half an inch thick. It 
is so large that when withdrawn the lip falls over on the chin. 

The Koniagas and Thlinkeets imprison girls arriving at the 
age of puberty in huts so small as to keep them continually in 
a cramped position for six months or even a year. Dances 
and feasts of various kinds are characteristic of savages every- 
where. Love of ornament seems to precede a desire for cloth- 

85 



86 EVOLUTION OF GOVERNMENTS A)ND LAWS 

ing. Thus in many parts of the world savages may be found 
tattooed, painted, adorned with feathers, quills, rings, shells, 
stone and wooden ornaments, often hideous in appearance to 
the stranger, but rigidly exacted by custom, while covering 
for decency or comfort is not thought of. The Indians of 
North America were remarkably formal and ceremonious in 
all their negotiations and consultations. Their grand councils 
are sometimes described as models of decorous procedure. 
Marriage ceremonies were not generally very formal, and the 
bond of union often not of great force. Polygamy was gen- 
erally allowed, but monogamy was the rule. They were un- 
doubtedly far more lax in morals than the whites, yet the 
difference is still of degree. The Indian lodges among the 
leading tribes sheltered families where continency and affec- 
tion were not wholly unknown. Among them there were 
marked differences as well in moral character as in mental 
capacity. The curious custom of dividing the tribes by totems 
was not a mere whim but had its foundation in a sound policy, 
and the rules relating to marriages based on it tended to check 
too close in and in breeding, likely to occur where people 
were divided into such small societies. Funeral rites were 
often impressive and proportioned to the estimation in which 
the deceased was held. Medicine men imposed on the igno- 
rant with their charms, incantations, and absurd remedies, yet 
the medicinal properties of some plants were known and with 
all their filthiness the natives of the Pacific coast appreciated 
the value of a hot bath, for which most tribes provided a crude 
bath-house. Alcholic stimulants seem to have been wholly 
unknown to them. Their only intoxication was that resulting 
from war dances, superstition and bloodshed, by which at 
times they were wrought to a state of frenzy. Tobacco was 
much used and stupor and sickness often resulted from their 
gluttony at feasts. Undoubtedly the wild tribes of America 
exhibited, over an extensive area and under diverse circum- 
stances, the first beginnings of organized societies more com- 
pletely than any other people. While many variations of 
manners and customs are to be noted, there was a marked 
similarity in their crude tribal organizations, clearly traceable 






TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 87 

to their habits of life and environments. The Indian was 
first and mainly a warrior, but to live he must hunt and fish. 
Though most of the eastern tribes raised a little corn and 
some few other vegetables, they still relied mainly on game 
for their subsistence. 

Their only conception of title to land was for a hunting 
ground and temporary occupancy. This title each tribe was 
called on to maintain against the encroachments of hostile 
neighbors. With their habits of life, a dense population 
could not be maintained nor a large city be built. Their 
property consisted only of weapons, temporary movable 
lodges and spoils of the chase, supplemented by crude house- 
hold utensils made from wood or stone. Moneys and reve- 
nues they did not know. In seeking to understand their 
government it is of first importance to know what could be 
governed. This ordinarily was a village of a few lodges, 
seldom more than one hundred. The people of the village 
were mostly related by blood and marriage. Whenever oc- 
casion required they could easily come together for consulta- 
tion. Each was known to the other. Personal prowess in war 
and in the chase, as well as eloquence and wisdom in council, 
were quickly discerned and understood by all. There was 
a strong tendency to community of enjoyment of game taken 
and crops gathered. Under these circumstances leadership 
was accorded to him who gained the approbation of his fel- 
lows. A chief was a natural leader, chosen by his comrades. 
As a ruler however he scarcely exercised any of the attributes 
of sovereign power. He could not levy taxes, but was ex- 
pected to generously distribute the game he secured. He 
had no lands yielding rent. He could not make laws for the 
people or declare war or make peace for them. All such mat- 
ters were referred to grand councils. His war party as a 
rule was made up of such as chose to follow him. In battle 
much more depended on individual craft and bravery than on 
generalship. Here and there throughout history we learn of 
leaders who exhibited a capacity for organization and general- 
ship, and who were able to impress on scattered tribes the ad- 
vantages of combination and concert of action for mutual 



88 EVOLUTION OF GOVERNMENTS AND LAWS 

protection. These combinations usually fell in pieces at the 
death of the leader. 

The famous Iroquois confederacy is an example of a more 
enduring and efficient combination, which enabled the six 
nations to maintain their hold on the rich hunting grounds and 
well stocked lakes and streams of New York against all hos- 
tile tribes. Their superiority over hostile tribes was due to 
their superior combination and nothing but the irresistible 
march of the whites was able to destroy them. 

The Comanches also evidenced some capacity for organi- 
zation and maintained a powerful confederacy. Neither of 
these confederacies however presents much semblance of a 
government. The levy of taxes and expenditure of the money 
by public officers, which plays so great a part in all advanced 
states, was unknown. The members of the tribes were all 
warriors with no other calling to interfere. A levy of forces 
was a levy en masse, and public sentiment was always suffi- 
ciently powerful to drive every ablebodied man to seek dis- 
tinction in war. While the women and children were usually 
left in a place of comparative safety, when war parties were 
out the organization of society was not greatly changed. All 
drudgery was done by the women in peace as well as in war, 
and feasts and famines alternated, whether the males were 
on the war path or in the lodges. 

The ancient Germans as described by Caesar and Tacitus 
present many points of resemblance to the Indians in customs 
and environments as well as in social organization, though in 
a much smaller territory. Tacitus says : "I concur in opinion 
with those who deem the Germans never to have intermarried 
with other nations; but to be a race pure, unmixed and 
stamped with a distinct character. Hence a family likeness 
pervades the whole though their numbers are so great; eyes 
stern and blue, ruddy hair, large bodies, powerful in sudden 
exertions, but impatient of toil and labor, least of all capable 
of sustaining thirst and heat, cold and hunger they are ac- 
customed by their climate and soil to endure." 1 

"It is well known that none of the German nations inhabit 
1 Tacitus, Germany C 4. 



TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 89 

cities or even admit of contiguous settlements. They dwell 
scattered and separate as a spring, a meadow or a grove 
chance to invite them. Their villages are laid out, not like 
ours in rows of adjoining buildings; but everyone surround- 
ing his house with a vacant space either by way of security 
against fire or through ignorance of the art of building. For 
indeed they are unacquainted with the use of mortar and 
tiles, and for every purpose employ rude misshapen timbers, 
fashioned with no regard to pleasing the eye." They also 
dug and inhabited caves. 2 

"In the election of kings they have regard to birth; in that 
of generals to valor. Their kings have not an absolute or un- 
limited power; and their generals command less through the 
force of authority than of example. If they are daring, ad- 
venturous, and conspicuous in action, they procure obedience 
from the admiration they inspire. None however but the 
priests are permitted to judge offenders, to inflict bonds or 
stripes, so that chastisement appears, not as an act of mili- 
tary discipline, but as the instigation of the god whom they 
suppose present with warriors." 3 They were great gamblers. 
"On affairs of small moment the chiefs consult; on those of 
greater importance the whole community, yet with this cir- 
cumstance that what is referred to the decision of the people, 
is first maturely discussed by the chiefs." 4 

The real power seems at all times to have been in the gen- 
eral assembly which listened to orators and leaders and gave 
weight to the counsels of such as it chose to follow. Prowess 
in arms was always the main source of distinction and war 
was the only real business of life. Their scanty clothing was 
made largely from the skins of wild beasts and that of both 
men and women was fashioned substantially alike. They 
were extremely hospitable both to strangers and acquaint- 
ances. As with all tribes which have not reached the com- 
mercial stage, they were fond of giving and receiving 
presents. In agriculture they do not appear to have pro- 
gressed farther than the Creeks, Cherokees or Navajos at 

2 Id. C 16. 3 Id. C 7. l Id. C 11. 



90 EVOLUTION OF GOVERNMENTS AND LAWS 

the time of the advent of the white man, nor in architecture 
or the manufacture of clothing and household utensils. The 
description so far given of the Germans in the time of Caesar 
and Tacitus would apply very well to most of the more id- 
vanced and vigorous Indian tribes at the time of their first 
contact with the whites. Let us note tjie leading points of 
difference. The Germans had horses and cattle. They made 
beer and the tribes near the Rhine also used wine. They 
drank to excess. They used iron for their weapons. They 
had fixed customs with reference to the use of land for til- 
lage, but which hardly amounted to an assertion of title even 
in the tribe. Though subject to the vicissitudes of war and 
sometimes driven from place to place, they were less mi- 
gratory than the Indians. They were more cleanly and bet- 
ter fed, having the advantages of milk, cheese and the flesh 
of their cattle. The most marked and important characteristic 
of their manners, as described by Tacitus and concurred in 
by all the early writters, is the purity of their domestic rela- 
tions, the care taken in rearing their young and preserving 
their strength. Chastity is seldom characteristic of barbarous 
races, but, in this particular, their manners were in striking 
contrast with those then prevailing in Rome. In the develop- 
ment of government it is apparent that the Germans at the 
time of our first introduction to them were in substantially the 
same stage as the Comanches, Iroquois and other more ad- 
vanced tribes of the north at the time of the discovery of 
America. 

The incipient stages of government everywhere exhibit 
either voluntary association for a common purpose or the 
despotic rule of the strong. In the former case the authority 
terminates with the necessity calling it into existence, and in 
the latter is dependent on the capacity of the master to main- 
tain his supremacy. In either case the authority exercised is 
arbitrary in character and not exercised in accordance with 
any established rules. 

Among the American Indians the organizations were 
largely voluntary in character. In Africa despotic tendencies 
predominate. The savage tribes of Africa are not less given 



TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 91 

to bloodshed than the Indians, but possibly a little less in- 
clined to inflict cruel tortures on enemies, equally violent in 
temper, but rather warmer in attachment, equally warlike, 
but more inclined to fight in the open and on even terms. 

In making provisions for the future, the African tribes are 
far superior to the Indians. Even the most fierce and inde- 
pendent tribes cultivate the soil to good purpose, raising large 
variety of vegetables and fruits and also keep cattle, goats 
and fowls, from which they are supplied with meat, milk, 
butter and eggs. This is especially true of the stalwart tribes 
and nations dwelling in the great lake region of equatorial 
Africa. The Hottentots, often mentioned as of a very low 
type, tilled the soil and kept their herds. In manufactures 
workers in iron are found by travelers in the heart of the 
continent. 

The classification often made of the stages of progress of 
the race, based on the nature of the implements used, will not 
hold good to any degree whatever as a classification of social 
development. The stone age, the bronze age, the iron age, 
are supposed to name the successive stages of human pro- 
gress, and in the development of the arts doubtless do, but in 
moral and social development they indicate nothing. Nor 
are the designations as hunters, shepherds and tillers of the 
soil more expressive in these respects. Along the great Congo 
and its tributaries are to be found many tribes which have 
passed all these stages, having their flocks and herds, their 
gardens, and fields of grain and fruits, which evidence con- 
siderable skill in the manufacture of household implements, 
boats, nets, etc. and also forge iron, from which they make 
knives, spears and other weapons, yet morally these people are 
among the most depraved. They are horrible cannibals. 
They are thieves and robbers as well as murderers at all times. 
Domestic virtue is unknown. Some tribes eat the old people 
when they cease to be capable of taking care of themselves, 
if we may believe the accounts of travelers. With a great 
part of them the governmental growth does not extend far- 
ther than tribal organization with no substantial power in 
the chiefs. 



92 EVOLUTION OF GOVERNMENTS AJND LAWS 

Throughout Africa all governments seem to be merely an 
extension of the relation of master and slave. Though pos- 
sessed of strong and vigorous bodies, of considerable skill 
and industry in providing for bodily comforts, of courage 
as well as cunning in war, they are sadly deficient in social 
virtue. From the small weak tribe, struggling for existence 
against its enemies, to the powerful kingdoms like Uganda, 
Unyoro, Dahomey and Abyssinia, all authority is exercised 
unchecked by law. Whatever the ruler does is in accordance 
with his individual will. Where the power is conceded the 
mode of its exercise is never questioned. When the king of 
Uganda sees fit to depose some one he has elevated to a high 
position, he sends a favorite with a sufficient following to 
"eat him up," which means that the obnoxious one is killed 
and his wives, slaves, cattle and property are confiscated and 
given to whomsoever the despot wills. The practice of poly- 
gamy is limited only by poverty. A great despot like the 
king of Dahomey may far outclass even the great Solomon 
in the number of his wives. The mode of administering the 
greatest of their governments is exceedingly simple. Where- 
ever the king acts directly on his subjects, he rules as an 
absolute despot, enforcing his commands summarily by seiz- 
ing property or person and taking life according to his humor. 
Where he acts through subordinates whom he cannot oversee, 
the same despotic power and discretion is exercised by the 
underling, who is only restrained by fear of displeasing the 
king. The horrible cruelty so often exhibited by these despots 
would seem such an intolerable evil that anarchy would be 
preferable. Yet, comparing the conditions of the people in 
the strong states with those of the scattered tribes, we find 
that even such a despotism exists because it is better than no 
government. Scattered villages, unprotected by any strong 
combination, are surprised and destroyed by some marauding 
tribe. Peace and plenty for a generation in some spot may 
be followed by partial or total destruction in a day. This 
has been the history of wild tribes everywhere from the 
earliest times of which we have any account. Tribe against 
tribe in battle to the death from generation to generation has 



TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 93 

been the history of the race. The hunters of America, relying 
mainly on game and spontaneous products, were kept con- 
stantly reduced in numbers by fierce wars and frequent fam- 
ines. The Africans with far better food supplies multiplied 
faster and developed more industry, yet bloody and devastat- 
ing wars seem to have been not less frequent with them. The 
effect of organized government everywhere has been to check 
tribal wars, to encourage industry, and to increase population. 
Though a large country be at war, there is peace to all save 
those in and about the scene of the struggle. The great na- 
tion too is not likely to be more frequently at war than the 
small tribe, and the percentage of destruction of those en- 
gaged generally' increases in inverse ratio to numbers. 

The African race throughout all ages has demonstrated its 
ability to survive and even increase in contact with the other 
races. Although northern Africa has been subject to . the 
influence of European and Asiatic civilization from the ear- 
liest times, it still retains its distinctive characteristics, and 
the negro type dwelling south of the great desert exhibits 
scarcely a trace of intermixture with the whites. Along the 
eastern coast it is true that the Arabs have intermixed and 
modified the type to some extent, but the predominant char- 
acteristics are distinctly African. The civilization of ancient 
Egypt does not appear to have ever ascended the Nile far 
beyond the desert, but it is probable that knowledge of agri- 
culture and the art of forging iron has spread over Africa 
from Egypt and Arabia. 

In comparatively recent times European civilization has 
taken a firm hold in south Africa and is rapidly extending 
toward the north. To what extent the African will give way 
and vanish before the Caucasian in the Tropical regions re- 
mains to be seen. In America it has been demonstrated that 
the negro multiplies both while in the condition of a slave 
to the white and as a free man. Everywhere and under all 
conditions he exhibits strong attachment to his offspring and, 
while lecherous, is still warm in domestic and friendly attach- 
ments, and often exceedingly kindly in disposition when his 
passions are dormant. In physical development the black 



94 EVOLUTION OF GOVERNMENTS AJND LAWS 

man can not be classed as clearly inferior to the white. 
Though some tribes are dwarfed and illformed, the great 
majority are equal in size and strength to the best developed 
Caucasians. Why they should havednade so little progress 
in constructing governments and enacting laws is an inter- 
esting subject of inquiry. Except where brought in direct 
contact with some superior race, they seem never to have 
learned any system of writing and, as we have seen, their 
only idea of government has been that of arbitrary personal 
authority, unrestrained by law or settled custom. Though in 
the region of the great lakes the natives cultivate the land, 
often to a high degree, Livingston, Stanley and other travelers 
fail to inform us of any system of laws governing land ten- 
ures. The chief or king may decide disputes between con- 
flicting claimants, but he does so according to his own caprice 
rather than by any settled law. The marvelous fertility of 
the soil, the extent of unoccupied land and the frequent de- 
struction of communities by war, seem to afford a continual 
outlet for any increase of numbers. It may be that a close 
study by a careful observer would disclose more in the nature 
of settled principles of government among them than the 
writings of hasty travelers record, but it seems clear that 
their conceptions of rules of property and laws governing the 
conduct of individuals toward each other, except where modi- 
fied by contact with other races, are not in advance if really 
equal to those of the American Indians. 

Intermediate the prevailing tribal organizations of America 
and the highly developed governmental systems of the Mexi- 
cans and Peruvians, were many nations advanced somewhat 
above the common level of the rude tribes. The Comanches 
presented an advanced type of the Indians who occupied most 
of the North American contient, well formed and vigorous in 
physique, brave and warlike, hospitable in peace, fierce and 
cruel in war. They were nomads. They held public councils 
at regular intervals to discuss public matters, make laws and 
punish crime. The majority ruled. Laws were published 
by a crier. Justice was administered by a council of the 
tribe whose sentence was carried into execution by the chiefs. 



TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 95 

A system of signals by fire and smoke was used to call their 
forces together in case of need. In war they were formid- 
able and could bring to the field a force of several thousand. 
Crimes were punished rigorously and toward each other they 
were peaceable. Their treatment of women was in accordance 
with the usual customs of savages. Wives were bought and 
made drudges for their husbands and polygamy prevailed. 
No attention was paid to agriculture, but the vast herds of 
buffaloes on the plains afforded an ample supply of meat. 
The Navajos, Mojaves and Yumas were more peaceful and 
industrious in their habits. They cultivated the soil and 
raised corn, wheat, beans, pumpkins, melons and other vege- 
tables. The Mojaves built substantial dwellings of very pecu- 
liar construction, and cylindrical granaries. Some tribes en- 
tered their dwellings from the top, having neither doors nor 
windows. The Navajos were shepherds, and their blankets 
have become noted. In the far northwest the natives showed 
a tendency to more settled modes of life and to class distinc- 
tions. The Nootkas, Chinnooks and Thlinkeets built large and 
substantial dwellings of wood, sufficient in size for many 
families occupying separate apartments. Property in these 
homes was recognized as vested in those who combined to 
build them. The villages of the Nootkas were regularly laid 
out. Something like hereditary rank was recognized, though 
the head chief had little real power except over his slaves. 
A sort of nobility existed, based on individual distinction in 
war or social liberality. Among the Thlinkeets and Haidahs 
the power of the chiefs is said to have been despotic at times. 
All the Northwestern tribes held slaves and had notions as to 
property rights. Though instances may be cited of arbitrary 
power exercised by Indian chiefs, the prevailing genius was 
that of liberty and equality. Personal prowess was the source 
of distinction, and recognized individual merit the commis- 
sion of leadership. The cunning of the medicine man, work- 
ing on the ignorance and superstition of the members of the 
tribe, gave him influence, but little real authority. No priestly 
class appears to have developed except in the advanced states 
of Mexico and Peru. 



96 EVOLUTION OF GOVERNMENTS AND LAWS 

Authorities 

Schoolcraft: Indian Tribes of theJU. S. 

Tacitus : Germany. 

David Livingston: Travels and Researches in Africa, Last 
Journal. 

H. M. Stanley : Through the Dark Continent, In Darkest 
Africa, Through the Great Forest. 

Elisee Reclus: Africa. 

Hugh Murray : The African Continent. 

Joseph Thomson: Through Masai Land. 

Caleb Atwater: Indians of the Northwest. 

Stephen Powers: Tribes of California. 

H. H. Bancroft : Native races of the Pacific States. 

John Thos. Short: The North Americans of Antiquity. 

S. G. Drake : Aboriginal Races of North America. 

S. G. Goodrich: History of the Indians of North America. 

Henry Alexander: New Light in Early History of North- 
west. 

Louis Hennepin. 



CHAPTER III 

Pacific Islands 

The social state of the natives of the Pacific Islands pre- 
sents a most curious study. Their character as depicted by 
the early discoverers is contradictory. This however is largely 
true of all savages. At times they appear as gentle, kindly, 
hospitable and peaceful, at other times as fierce, treacherous, 
vicious and murderous. That they were mostly cannibals is 
beyond doubt, yet they generally lived under conditions af- 
fording abundant and varied food supplies. They tilled the 
soil, raised pigs and fowls and in most parts recognized in- 
dividual ownership of the soil. Though scattered over numer- 
ous islands distant thousands of miles from each other, the 
people appear to be of one race and their language and cus- 
toms are surprisingly similar from Hawaii to New Zealand. 
The ignorance of Europeans of their ideas and superstitious 
observances of the laws of taboo have doubtless led to many 
exhibitions of fierceness by the natives, the reason of which 
has not been understood by Europeans. The violation of a 
taboo by taking a sacred thing or invading a sacred place 
aroused the otherwise peaceful islander to murderous frenzy. 
Kingly authority, class distinctions and slavery appear to have 
been general in their system, which is spoken of by some as 
based on castes. 

In some respects they are, according to European ideas, to 
be classed as among the lowest types of mankind. They went 
naked and ate human flesh. Yet they recognized govern- 
mental authority and rights of property. These were upheld 
by intricate religious or superstitious observances of taboos, 
which made sacred to the use of the king all things which he 
touched and, lest the property of the subject should become so, 
forbade him to use anything but his own. With them, as 
with all savages in moderate climates, the body was disfigured 

97 



g8 EVOLUTION OF GOVERNMENTS AND LAWS 

for ornament, and the idea of making clothing for comfort 
does not appear to have suggestedutself. Owing to the small 
size of the islands and the distance of one from another, the 
authority of a king seldom extended far and the number of 
people under one soereign was necessarily small in compari- 
son with even the larger African despotisms. Still it was 
not uncommon for a king to rule a whole group of islands. 
New Zealand affords a comparatively wide field, but does 
not seem to have developed a higher type of government. 
Numerous chiefs having little real power led the people in 
their wars. Having no money there were no taxes, but there 
were slaves. Having no knowledge of the use of letters they 
had no written laws, but their customs and superstitions, 
taught orally, were quite complicated. There was little basis 
for commerce, as the products of all the neighboring islands 
were substantially alike, and the fish of the sea were equally 
accessible to all. Manufacturing was mostly limited to build- 
ing huts, boats and making weapons and fishing tackle. The 
similarity of the people and their customs on so many islands, 
so remote from each other, is very striking. While on the 
continents tribes differing radically in language, customs, 
character and appearance are often found in close proximity 
to each other, the people of Hawaii and New Zealand, though 
separated by sixty degrees of latitude, seem clearly . of the 
same race. 

As with nearly all the lower races the women bore the heav- 
iest burdens. The taboo prohibited her from partaking of the 
flesh of pigs and fowls and from feasts of human flesh. En- 
forced by superstitious fears as well as physical force, the 
taboo operated as a powerful aid to the authority of the ruler 
and exercised a wide influence on the conduct of the people. 
It was in effect a most peculiar system of laws, having little 
similarity to anything found in continental regions. The 
taboo of the king or chief rendered not only his person and 
property sacred but even his name. This was a recognition 
of his divine right far surpassing that of European kings. 
The idea of the sanctity of priests, churches and sacred places 
is similar only in a slight degree to the idea of absolute ex- 



PACIFIC ISLANDS 99 

clusiveness imposed by the taboo. As applied to the matri- 
monial relation the wife was taboo to all but her husband. 
For savages this was quite a close approximation to the idea 
of the sacredness of the marriage relation. 

The inhabitants of the Marquesas Islands at the time of 
their discovery by Captain Cook in 1 774 are estimated to have 
numbered 150,000. They then were, and still are, described 
as remarkably perfect physical specimens of men and women, 
yet matrimonial relations were so lax as to approximate pro- 
miscuity. Children were affectionately treated by all without 
regard to relationship. The abundance of natural food prod- 
ucts and climatic relief from need of clothing relieved parents 
from all anxiety about their support. When discovered they 
are said to have been exceptionally free from disease and 
physical ailments of all kinds. The Europeans failed to induce 
them to adopt their civilization and modes of life, but succeeded 
in introducing their vices and diseases with the result that the 
whole native population of all the islands is now estimated at 
less than 2,000, many of whom are hopelessly diseased. 1 In 
New Zealand, Hawaii, Tahiti and other islands contact with 
Europeans does not appear to have been quite so disastrous 
to the natives, but they do not appear anywhere to have profited 
from the introduction of either European or Asiatic civiliza- 
tion. 

1 John W. Church in National Geographic Magazine, Vol. XXVI, No. 4. 



CHAPTER IV 

Mexico 

The governmental systems of the inhabitants of the Mexi- 
can plateau differed, not merely in degree of development, but 
radically in character, from the tribal organizations and con- 
federacies of the wild races of the north. The Tlascalans 
seem to have retained more of the traits and characteristics 
prevailing among northern tribes than their more numerous 
neighbors. Prescott speaks of Tlascala as a republic, but, if 
such, it was of a most peculiar sort. The principal authority 
was vested in four chiefs, each of whom had his separate 
district, parcelled out among sub-chiefs, who held by a tenure 
similar to that of the feudatory vassals of Europe, and were 
bound to render military service to their chiefs, as well as to 
supply their tables. The affairs of the general government 
were settled by a council consisting of the four principal chiefs 
and the inferior nobles. The domains of the sub-chiefs were 
parcelled out among their retainers, who were bound to render 
them like service as that they gave their superiors. The bond 
of union appears to have been very firm and was well main- 
tained. In the city, order was preserved by a municipal police. 
Military prowess was the source of greatest distinction, and 
a rank corresponding with knighthood was conferred on those 
exhibiting especial merit. The lowest order of people appear • 
to have been held in a condition not unlike the European 
peasants of feudal times. 

The darkest aspect of Aztec life was the bloody and gloomy 
religion, the cruel rites of which constantly characterized the 
deity as savage, remorseless and devoid of love or pity. The 
custom of eating human flesh is only reconcilable with the 
otherwise high state of civilization attained, as an ordinance 
of their horrible superstition. Their war god, like the war 
gods of all people in all times, taught lessons of cruelty and 
forbade all exhibitions of pity or kindness toward enemies. 

ioo 



MEXICO 101 

The government of the Aztecs was an elective monarchy. 
The sovereign was selected from the brothers of the deceased 
monarch or in default of them from his nephews. The choice 
was made by four of the principal nobles, designated for that 
purpose by their own order in the preceding reign. This sys- 
tem appears far better calculated to place a meritorious prince 
on the throne than the prevailing system in modern Europe, 
which places the crown arbitrarily on the eldest son of the 
deceased monarch without regard to merit. It also avoided 
the necessity for a protector ruling in the name of an infant 
king, for among those eligible there would seldom fail to be 
an adult. The electors, taken from the leading men of the 
nation, were familiar with the character of all the princes and 
in a position to make the best possible selection. This system 
is doubtless due to the democratic ideas which prevailed among 
the aborigines of America, and to their settled custom of 
awarding power and leadership only to such as exhibited 
capacity for it. The results fully demonstrated its wisdom, 
for their kings were men of conspicuous ability. The king 
was not only the chief executive and commander-in-chief of 
the army, exercising direct authority over the principal nobles, 
who were required to render him personal service at his 
palace and in his body guard, but he also exercised the legis- 
lative function. This he did in a manner far in advance of 
the methods of African and many Asiatic despotisms. The 
laws promulgated were registered and exhibited to the people 
in picture writings. They were of course adapted to the con- 
ditions of the people, and show evidences at the same time of 
enlightened policy and savage cruelty. Murder and adultery 
were punished with death. Thieves were either enslaved or 
put to death. Among capital offences were numbered re- 
moving the boundaries of anothers land, altering the estab- 
lished measures, and misconduct of guardians in dealing with 
the property of their wards. Prodigals and drunkards were 
severely punished. The marriage relation was clearly com- 
prehended and its sacredness recognized and protected. Di- 
vorces could only be obtained by decree of a court having 
jurisdiction solely of domestic affairs, after a full and patient 
hearing of the parties. 



102 EVOLUTION OF GOVERNMENTS AND LAWS 

Slavery existed among them, but in the least objectionable 
form in which it has existed anywhere. Its subjects were 
prisoners of war, who however were almost invariably sacri- 
ficed rather than enslaved, criminals, public debtors and poor 
persons who sold themselves or their children. The services 
to be exacted were limited with precision. The slave was 
allowed to have his own family and property, even other 
slaves. His children were free. There was no such thing as 
hereditary slavery, and sales of slaves were rare. The sepa- 
ration of the judicial power from the executive and legislative 
evinces a comprehension of the principles of good government 
hardly to be looked for. Over each of the principal cities and 
its tributary country there was a supreme judge, appointed by 
the king, but holding his office for life. He had jurisdiction 
in both civil and criminal causes. There was an inferior 
court in each province, composed of three members, having 
concurrent jurisdiction in civil causes. In criminal cases an 
appeal lay to the supreme judge. Besides these there were 
inferior magistrates throughout the country, chosen by the 
people of the districts and having jurisdiction in minor causes. 
There were also inferior censors, elected by the people, whose 
duty it was to watch over a certain number of families and 
report any infraction of the laws. In Tezcuco a general meet- 
ing of all the judges throughout that kingdom, presided over 
by the king, was held every eighty days at the capital for the 
determination of causes of first importance. This general 
court also acted as a grand council of state. For a judge to 
receive a bribe was punishable with death. The judges were 
supported from a part of the produce of the crown lands set 
apart for that purpose. They wore official robes and worked 
full days. Officers corresponding to sheriffs and bailiffs were 
in attendance to preserve order, summon parties and wit- 
nesses. Lawyers do not appear to have been in favor and 
are not mentioned in connection with the proceedings of the 
courts. In criminal causes the accused was allowed to testify. 
The testimony and proceedings were taken down by the clerk 
in hieroglyphical painting and delivered to the court. 

In the art of levying taxes, as in all other branches of the 



MEXICO 103 

science of government, the Aztecs were far in advance of all 
savages. Besides the revenue from crown lands, services in 
building the kings palaces and buildings were exacted from 
laborers dwelling in the adjacent territory. Tribute in kind 
was required from farmers and manufacturers, and the table 
of the monarch and his retainers was abundantly supplied by 
his subjects. His granaries were filled with corn and his 
warehouses with cotton cloths and feather robes, arms, armor 
and utensils collected by his tax gathers from all parts of the 
empire. In fact every variety of product for use or ornament 
was collected for the king. 

Any description of the Mexican government which ignores 
the priesthood leaves out the most characteristic part. The 
influence of the priests on the policy, as well as on the man- 
ners and morals of the people, was of first importance. The 
chief priests were not only at the head of a vast religious 
establishment, numbering thousands of inferior members, but 
at the same time superintended the educational system of the 
empire and exercised a most potent influence on the policy of 
the king. To supply the thousands of human victims, who 
were sacrificed during each year to their cruel gods, it was 
necessary to wage war and bring in captives. At the behest 
of the priests the monarch was often influenced to put the 
armies into the field. Thus the empire was extended, at the 
expense of neighboring tribes, and victims were supplied for 
the sacrificial stone. 

At the head of the religious order were two priests chosen 
by the king and principal nobles. Below them were others of 
various ranks and functions in all the towns of the empire, 
forming a very numerous body. Their teocallis or temples, in 
great number and many of them of vast size, were thickly 
scattered about the cities. On the top of the terraced mounds 
of earth, on which the temple proper stood, the victim was 
bound on the sacrificial stone, and in sight of the people far 
and near the priest cut his breast open with a sharp stone, 
tore out his throbbing heart, held it bleeding to the sun and 
then cast it at the feet of the idol. The body of the victim 
was then given to his captor to be served at a great feast 
given to his friends. 



104 EVOLUTION OF GOVERNMENTS AND LAWS 

In some respects the religious societies were similar to 
those of the Catholic Church. They held and tilled great 
bodies of land, the surplus products of which over what was 
consumed by them, were distributed to the poor. The priests 
heard the confessions of the people and granted absolution 
for their misdeeds. More important, however, than all this, 
the religious houses were the repositories of learning. To 
them was due the credit of developing the art of picture writ- 
ing, and they took charge of the instruction of the young. 
By this means their doctrines and superstitions were given a 
strong and lasting hold on the people, especially the nobility, 
whose children were trained by them. 

In all ages and among all people public ceremonies have 
played an important part in public affairs and exercised a 
powerful influence on society. Among the savage tribes of 
America, feasts, dances and formal councils have afforded 
the occasion and opportunity for gathering the sentiment of 
the tribe on public questions, for arousing their passions and 
starting them on the war path. In imperial Rome the culture 
and innate savagery of the people were exhibited at the circus. 
Nero read his verses above the arena whose sands soaked up 
the blood of martyrs, gladiators and wild beasts. The Mexi- 
cans exhibited no less strong contrasts in their public cere- 
monies. Beautiful flowers in tropical profusion, emblems of 
peace and innocence, adorned the processions which bore vic- 
tims to the altars of the gods. Innocent babes, gaily decked 
with beautiful robes and roses, were carried to their doom 
by chanting priests. At the same time that observance of 
these most cruel and savage rites was inculcated, the priests 
taught lessons of private virtue and integrity, obedience to 
law, industry and thrift. It may be remarked that even their 
treatment of prisoners was an improvement on that prevailing 
among the savage tribes with which they were surrounded. 
The act of cutting open the breast and tearing out the heart 
was quickly and dexterously performed, and the suffering of 
the victim soon ended. Let it not be forgotten also, while 
we are condemning the Aztecs for their barbarity, that, at 
the same time, the most Christian nations of Europe were 



MEXICO 105 

breaking heretics on the rack, walling them up alive in tombs 
and applying all the tortures which fiendish ingenuity couKl 
devise, for the purpose of preserving intact the authority of 
the priests and teachers professing to be followers of the 
meek and lowly Nazarene, who came to bring peace on earth 
and good will to men. Let us remember that our Puritan 
ancestors, even at a later day, hung and burned people guilty 
only of the imaginary crime of witchcraft. Let us bear in 
mind how heads were lopped off in England and elsewhere 
for even dreaming the death of the king. Though so ab- 
horrent to our ideas and feelings, their cannibalism seems to 
have been prompted by fanaticism rather than foul appetite. 

The number of festivals observed by the Mexicans was 
very great. Each god received his due honors, and all re- 
ligious ceremonies were conducted by the priests and ob- 
served by the people with order and decorum. It is curious to 
note that under the more ancient civilization of the Toltecs 
human sacrifice was unknown. Not until the ascendency of 
the Aztecs had the Inquisition begun its bloody career on 
the European continent. 

The domestic regulations of the Aztecs were neither of the 
best nor of the worst. Polygamy was practiced to some ex- 
tent, especially among the rich, but was not general. Slavery 
as we have seen existed but in a mild form. On the other 
hand marriages were celebrated with much ceremony, con- 
tinency on the part of both sexes was strongly inculcated, and 
adultery severely punished. Though children were strictly 
ruled, especially while under instruction, their parents re- 
garded them with affection. Wives were not slaves to their 
husbands, but were their companions and shared with them 
at feasts and entertainments. Divorce implied disgrace and 
could only be obtained through a court for cause. Guardians 
were appointed for orphans and were held to the strictest 
account in the management of their estates. The principal 
part of the labor of the fields was performed by the men. 
Only the lighter kinds of work were done by the women, and 
it is said that in the division of labor the weaker sex was 
quite as tenderly regarded as in most parts of Europe today. 



io6 EVOLUTION OF GOVERNMENTS AND LAWS 

The educational and material' progress made by the Mexi- 
cans was such as might naturally be expected from their 
circumstances. Considerable skill was developed both in agri- 
culture and in manufactures, but trade hardly passed the stage 
of local barter. Regular markets were held in the cities on 
every fifth day, which were attended by a great concourse of 
people. Different quarters were assigned specially to each 
kind of commodities and, where barter failed, a kind of cur- 
rency consisting of quills of gold dust, bits of T shaped tin 
and bags of cacao of a specified number of grains was used. 
The precious metals as well as tin and copper were wrought 
with much skill into useful and ornamental vessels and im- 
plements of various kinds. The fibre of the maguey and 
cotton furnished material for the weavers, of which they 
made good use, and the richest robes were made with feathers. 
Though their architecture was not of high order, the teocallis 
and palaces were of great size, and the latter of considerable 
pretensions for comfort. Post routes were established 
throughout the empire, with stations at short intervals, and 
by means of trained messengers dispatches were forwarded 
with remarkable speed. Picture writing had reached a stage 
of development that furnished means of communication by 
writing and orders from the king were so transmitted by his 
messengers. 

The most marked and surprising evidence of scientific 
progress was in the correctness of their calendar, in which 
the length of the year was set down with a very close ap- 
proximation to absolute accuracy, and the equinoxes and 
solstices were correctly noted. 

-Domestic animals the Aztecs had not. They were therefore 
total strangers to the shepherd state. The buffaloes of the 
prairies were never reduced to subjugation by them. The 
care with which they made provision for future wants in 
well stored granaries and warehouses is in marked contrast 
to the improvidence of northern tribes. In their pulque, made 
from the sap of the maguey, they had an intoxicating drink 
of which they were excessively fond, but of which only the 
old people were allowed to partake freely. The diversity of 



MEXICO 107 

climate due to difference in elevation afforded a most diversi- 
fied and prolific flora which they studied with care. Their 
gardens afforded both useful and beautiful plants in the great- 
est variety. 

Authorities 

Prescott: Conquest of Mexico. 
Encyclopaedia Britannica. 



CHAPTER V 



Peru 



The governmental system of Peru, as it existed prior to the 
Spanish conquest, is unique in some of its most essential fea- 
tures and worthy of the most careful study. For information 
with reference to it we have to look to the accounts of its 
fierce and fanatical conquerors, who probably failed to fully 
and clearly comprehend the spirit of it. 

The native tribes of South America were generally as defi- 
cient in organization as those of North America. The Arau- 
canians, inhabiting the country to the south of Peru, exhibited 
some capacity for concerted action and were a bold and vigor- 
ous race, but their institutions bore no resemblance to those 
of Peru. Why a great and strong government, so peculiar in 
form, should have developed amidst such surroundings, ap- 
parently with nothing to suggest the well digested policy pur- 
sued by the Incas from generation to generation, is an 
unsolved riddle. The tradition of Manco Capac and Mama 
Oello Huaco, children of the Sun, appearing near Lake Titi- 
caca and proceeding to gather the fierce, warlike and cannibal 
tribes into communities and teach them the arts of peace and 
the duty and blessings of mutual helpfulness, is as charming 
as anything to be found in Greek Mythology, yet fails to ac- 
count for the origin of the Empire, unless we are ready to 
concede, as did the Peruvian people, the divine origin of their 
rulers. In the claim of a divine origin for kings there is 
nothing new or uncommon. 

The power of hereditary despots is universally exercised 
under claim of a divine commission. Generally this claim 
has been fortified by an organized priesthood, sedulously 
teaching the people to view the king with awe and reverence 
as the representative on earth of the Deity. Inferior officers 
civil and military have, through various motives, also instilled 

1 08 



PERU 109 

into the minds of the multitude an idea of the sacredness of 
the prince and the divinity of his commission to rule over 
men. The government of Peru was a monarchy, hereditary 
in the male line. The Inca stood at the head of both the 
civil and religious orders. He married a sister of the full 
blood for his queen, whose issue succeeded to the throne, and 
also had numerous other wives. All descendants of the Incas 
constituted the highest order of nobility, and from them all 
the great offices of state were filled. From a small territory 
in the vicinity of Cuzco the dominion of the Incas was grad- 
ually extended, by peaceful methods wherever possible, but 
by war when necessary, over adjacent tribes. The conquered 
people were never exterminated, but became subject to the 
same regulations as other subjects and received like protection. 
Their caciques constituted an order of nobility, inferior to 
that of the blood of the Incas, and exercised some authority 
over the tribes to which they belonged. They were required 
to visit the capital and allow their sons to be educated there, 
so that in the succeeding generations they became imbued 
with the principles of the government. The members of the 
family of the Inca are said to have been of a superior type 
to the mass of subjects. Whether this was due merely to 
difference in mode of life and opportunities for development 
or to a diversity of original stock cannot be very satisfactorily 
answered. Over the religious order stood a high priest or 
V iliac Vmu as he was called, inferior only in dignity to the 
Inca, by whom he was appointed from his near kindred, te 
hold the office for life. The V iliac Vmu appointed to all the 
inferior stations of the order. Those officiating about the 
temple of the Sun at Cuzco were exclusively of the blood of 
the Incas, as were also the high priests in each district of the 
empire, but ministers in provincial temples were selected from 
the families of the native curacas. All members of the Inca 
nobility were looked up to with veneration as belonging to 
the holy order. The functions of the priestly order related 
exclusively to service in the temples and in connection with 
the very elaborate feasts, festivals and public worship. The 
Sun was the principal deity worshipped, with a small share 



no EVOLUTION OF GOVERNMENTS AND LAWS 

of devotion for the Moon, his sister wife, the stars, the rain- 
bow, thunder and lightning. But the Incas, like the ancient 
Greeks and Romans, were exceedingly tolerant of other gods, 
and also had their Pantheon in which were set up the images 
of the deities of all the conquered tribes of the empire. Fol- 
lowing the submission of a tribe worshipping a peculiar god 
or idol, the image was at once promoted and took its place 
among the gods at Cuzco, where it received appropriate hom- 
age at the expense of the state. Public sacrifices were made 
at the great festivals, and it is said at times in addition to 
animals, grain, flowers and sweet scented gums, children and 
maidens were also sometimes offered on the altar. It is cer- 
tain, however, that human sacrifices were rare, and it is even 
disputed by some that any such were made. The "House of 
the Virgins of the Sun" at Cuzco was filled with fifteen hun- 
dred vestal virgins of the blood of the Inca, who kept the 
sacred fires, started at the annual feast of the Rayini, and 
wove from the hair of the vicuna the hangings for the temples 
and the clothing for the household of the Inca. Though 
called Virgins of the Sun they were really for the Inca, who 
selected such of them as he pleased for his seraglio. Such as 
were chosen were kept either at Cuzco or at the different pal- 
aces throughout the empire. In case he chose to dispense 
with any of these, they were returned to their former homes, 
where they were treated with marked distinction as brides of 
the Inca. If guilty of any loose conduct while in the House 
of the Virgins, however, they and all connected with them 
were punished with death. 

The empire of Peru was divided into quarters, to each of 
which ran one of the four great roads diverging from the 
capital. Cuzco was likewise divided into four quarters, and 
the people of each tribe or district residing in the capital lived 
in the quarter nearest their native place. Each of these four 
great provinces was placed under a viceroy, who ruled with 
the aid of one or more councils for the several departments. 
The viceroys resided some of the time at the capital, where 
they formed a council of state to the Inca. The people were 
divided into bodies of ten, and the head of each decade was 



PERU in 

responsible for their conduct. Above these were divisions into 
fifties, hundreds, five hundreds and thousands, with an officer 
having supervision at the head of each. A further division 
into departments of ten thousand people was also made, over 
each of which was placed a governor of the blood of the Inca. 

The judicial system was exceedingly simple, and the law's 
delays found no place in it. There were regular courts in 
each town and community, having jurisdiction of petty of- 
fenses, while those of more serious character were heard by 
superior judges or governors of districts. The judges were 
all appointed by the Inca and removed at pleasure. They 
were obliged to determine every suit in five days from the 
time it was brought, and there was no appeal. A board of 
visitors traveled over the kingdom, inquired into the conduct 
of the magistrates and punished any misconduct. Inferior 
courts were required to make monthly returns of their pro- 
ceedings to the superior ones, who in like manner reported to 
the viceroys. 

Theft, adultery and murder were capital offenses, unless 
mitigating circumstances were found. Blasphemy against the 
Sun and malediction of the Inca were punished with death, 
as also was the burning of a bridge. There were few laws 
relating to property rights as between private citizens, for 
the reason that the general policy of the empire left no room 
for much in the line of private interests. To destroy land- 
marks, burn a neighbor's house or cut off his water supply 
was a serious offense. In its division of the land and super- 
intendence of all the business of the people is exhibited the 
most marked peculiarity of the Peruvian polity. The whole 
territory of the empire was divided into three parts, one for 
the Sun, one for the Inca and the other for the people. The 
proportions varied according to circumstances. The lands 
of the Sun supported the religious establishments, fed the 
priesthood and supplied all things needed for their elaborate 
ceremonials. From that of the Inca the royal household and 
all the needs of the civil and military establishments were 
supplied. The remainder was divided in equal shares per 
capita among the people. The division of the soil was re- 



ii2 EVOLUTION OF GOVERNMENTS AND LAWS 

newed every year, and the share assigned to each household 
was increased or diminished according to the number in the 
family. The only distinction allowed was in favor of the 
lower order of nobility, who were given a larger allowance. 
The people first attended to the cultivation of the land of the 
Sun. Next they tilled the lands of the old, the sick, the 
widow and orphan and the soldiers away in actual service. 
They were then allowed to attend to their own, each by him- 
self, with a general obligation to be mutually helpful in case 
of need. Lastly they cultivated the lands of the Inca, all 
working together in gala costume and making it a time of 
jubilee and festivity. The crops belonging to the Sun and the 
Inca were gathered and placed in granaries provided for the 
purpose. 

The flocks of llamas were exclusively the property of the 
Sun and Inca and were cared for by shepherds assigned to 
that task. Great numbers of them were slaughtered for 
religious festivals. At the proper time they were sheared and 
their fleeces deposited in the public magazines, from which 
the wool was distributed among the people according to their 
needs, and spun and woven by the women, who were educated 
to that end. Cotton however was raised on the lowlands and 
used for clothing by the people in the hot districts. The 
people were also required to weave for the Inca, and officers 
appointed for the purpose, distributed the material and di- 
rected the work. Not only did they see to the proper use of 
the material furnished for the use of the Inca, but also to 
that for the people as well, and care was taken that nothing 
should be wasted or misapplied. The great majority of the 
people were husbandmen, who supplied their wants from the 
lands assigned to them. There was need however of hands 
to work the mines, which all belonged to the Inca, and to 
manufacture the utensils and ornaments of his palace and the 
temples. For these a sufficient number were selected and 
specially instructed in the arts. For the construction of pal- 
aces, temples, roads and other public works, laborers were 
drawn from the various provinces for stated periods of service 
and maintained at the public expense while so employed. The 



PERU 1*3 

distribution of burdens was fair and equal, so that no person 
was crushed by the public exaction. 

An accurate census of the inhabitants was made and re- 
turned every year, and registers were kept of all births and 
deaths. At intervals a general survey of the whole country 
was made, showing the amount and quality of the land, and 
the purposes to which it was adapted. This afforded the basis 
for the division of the land, the apportionment of public work, 
the levy of soldiers and the distribution of supplies. Distri- 
butions among the provinces and districts were determined by 
superior officers and particulars were attended to by the local 
authorities. Thus ancient Peru affords probably the only 
instance on a large scale of a government mainly devoted to 
the regulation of the business affairs of the people with a 
view to promoting the general comfort and prosperity of all. 
The fundamental ideas of their system were, that all should 
work industriously yet not beyond the limits of endurance, 
that each should be provided with the necessaries of life, 
should marry, rear children, live virtuously and honestly. The 
vast and magnificent public works and the great stores of 
grain and manufactured stuff found by the conquerors bear 
testimony to succeessful employment of the people in indus- 
trial pursuits and to excellent economy in the use of the 
products of their labors. The Spaniards reported finding- 
grain enough to last several years in their granaries and vast 
quantities of woolen and cotton stuff, as well as implements 
and utensils of various kinds, in their warehouses. The 
stores of grain from the lands of the Sun and Inca were not 
wasted, but in time of need were drawn on to supply the wants 
of the people. 

The government was a great business establishment calling 
for a vast amount of patient attention to details. The no- 
bility, while enjoying superior advantages, were not mere 
drones nor intriguing politicians. Each had his duties to per- 
form for the public. The government not only directed all 
warlike undertakings and all works regarded by Europeans as 
public, but also filled, to some extent, the place of the mer- 
chants and operators of mines and factories. In considering 



ii4 EVOLUTION OF GOVERNMENTS AND LAWS 

what was accomplished by this system it must be borne in 
mind that all was done without the aid of steam, electricity or 
labor-saving machinery of any kind, that the use of iron 
was unknown, and that they were wholly unacquainted with 
letters or even with the rudiments of picture writing; yet they 
kept more accurate records of the people and resources of the 
empire than were kept by any contemporaneous European na- 
tion. This was done by means of the quipu, one of their 
peculiar devices. It was a cord about two feet long composed 
of different colored threads, tightly twisted, from which 
smaller threads were suspended like a fringe. The colors de- 
noted different objects or ideas as yellow, gold; white, silver; 
red, war; white, peace. Knots tied in the threads indicated 
numbers, and by different combinations of threads and knots 
numbers to any limit could be expressed. All calculations 
were made by use of the quipu and with great accuracy. Dif- 
ferent officers made reports to the government on different 
subjects. One had charge of the revenues and reported the 
stores of various kinds placed in the public granaries and 
warehouses, and the raw material distributed among the la- 
borers. Another made report of births, deaths, marriages, 
number of men capable to bear arms and other de- 
tails relating to population. All returns were forwarded an- 
nually to Cuzco, where they were inspected and used by the 
proper officers. These knotted skeins of many colored thread 
afforded complete statistics of the material resources and busi- 
ness affairs of the entire kingdom. The system has advantages 
over reports in written or printed words. There is no chance 
to talk for the purpose of concealing information. The 
threads and knots had definite and certain meanings, and told 
their story once and for all. 

Along the great highways, which equalled Rome's great 
roads in construction, were placed at intervals of ten or twelve 
miles tambos for the accommodation of the Inca and those 
who traveled on public business. Some of these were very 
large and designed to lodge the army when marching through 
the country. A complete system of posts was established along 
all great routes. Small buildings were erected at intervals 



PERU 115 

cf less than five miles, in which were stationed a number of 
trained runners, called chasquis, whose duty it was to carry 
dispatches and articles for the use of the Inca and his court. 
By this means urgent messages were carried at the rate of 
one hundred and fifty miles a day, and the Inca was kept con- 
stantly informed of what was taking place in the most re- 
mote parts of the empire. The military system and policy 
were on an equally orderly and advanced plane. Regular 
drill took place in every village twice or thrice a month. In 
case of war levies were drawn from each province and divided 
into companies and battalions under proper officers, and the 
whole army was led by the Inca or one of his blood. The 
troops moved rapidly along the great roads and found ample 
provision for their support at every camping place. Like 
Rome in her palmy days, Peru steadily extended her dominion 
by peaceful negotiation, persuasion and inducements to the 
chiefs and leaders of neighboring people wherever possible, 
but by arms when other means failed. Thus the empire spread 
from its original small district about Cuzco northward beyond 
Quito to about two degrees north latitude and south to about 
thirty-seven degrees south latitude, and from the Pacific on 
the West to an unknown boundary on the eastern slope of 
the Andes. Each conquered district was carefully surveyed 
and the lands apportioned on the same principles as were ap- 
plied in other parts of the empire. The people, especially the 
chiefs, were taught to speak the Quinchua tongue, the lan- 
guage of the court, and for this purpose teachers were sent 
into the newly acquired province. In case of serious disaf- 
fection or continued turbulence on the part of the inhabitants 
of any district the people, or a considerable portion of them, 
were transplanted into some distant province, where they were 
surrounded by subjects of tried fidelity, and their places filled 
by the displaced population. 

While polygamy was allowed to the Inca, who took to him- 
self wives and concubines in great multitude, and also to the 
great nobles, and while the Inca took one of his own sisters 
for his queen, the common man was restricted to one wife, 
to be selected from the community in which he lived, but was 



u6 EVOLUTION OF GOVERNMENTS AND LAWS 

forbidden to take his sister. Marriage was compulsory. On 
a stated day in each year all those of marriageable ages, males 
of not less than twenty-four and females of eighteen to 
twenty, were called together in the great squares of the towns 
and villages. The Inca was master of ceremonies in the as- 
sembly of his own kindred and married the different pairs by 
taking their hands and placing one within the other and de- 
claring them man and wife. The same ceremony was per- 
formed for the common people by the local magistrates. The 
consent of the parents was required. A dwelling was pre- 
pared for each couple by the district, and their share of the 
land was set off to them. The simple marriage ceremony was 
followed by general festivities among the friends of the 
parties, which lasted several days, and as all the weddings 
for the year took place on the same day, nearly the whole 
population of the empire joined in the jubilee. It is asserted 
that there was not a prostitute in the whole empire. What 
rules obtained with reference to the remarriage of widows and 
widowers the writer has not been able to ascertain. The 
general policy seems to have been to promote industry and 
virtue by providing all with homes and family ties. 

The educational system was based on the theory that each 
should be taught that and that only which pertained to his 
particular calling. A favorite maxim of Tupac Inca Yupan- 
quin is said to have been that : "Science was not intended for 
the people; but for those of generous blood. Persons of low 
degree are only puffed up by it, and rendered vain and arro- 
gant. Neither should such meddle with the affairs of gov- 
ernment, for this would bring high offices into disrepute and 
cause detriment to the state. ,, 

The members of the numerous families allied by blood to 
the Incas were educated by their amantas or wise men at semi- 
naries provided for the purpose. They were instructed with 
especial reference to the stations they were to occupy. They 
were carefully taught the principles of government and the 
laws they were to administer. Those who were to assume 
priestly functions were specially instructed in religious rites. 
All were taught to speak the court language in its purity and 



PERU 117 

learned the science of the quipus, which at the same time 
covered the field of mathematics and supplied the place of 
written records. Historical traditions were transmitted orally, 
supplemented by the data recorded by means of the quipus. 
By this method a considerable degree of accuracy could be 
preserved in a tale passed down through many generations. 
The use of the quipu would seem capable of indefinite exten- 
sion and elaboration, for threads of different colors and 
lengths knotted and combined in various ways would possess 
as great capacity for expressing ideas as arbitrary characters 
marked on paper. The use of them appears less convenient, 
but it is evident that the possibilities of communication by 
means of them are unlimited. The number of primary threads 
for characters could be multiplied indefinitely and moulded 
to use in the same manner as letters are now used. It seems, 
however, that the Peruvians had not developed the system to 
this extent, but used the threads as symbols of things and to 
a limited extent of abstract ideas. 

The education of the lower orders was not wholly neglected. 
Those engaged in agriculture were instructed in the cultiva- 
tion of such products as were adapted to the lands to which 
they were assigned. The varieties of climate due to differ- 
ence in altitude, ranging from tropical heat along the sea 
coast to perpetual snow on the mountain tops, afforded a 
great diversity of products in neighboring districts. Ban- 
anas, manioc and other tropical products on the hot lands, 
Indian corn, maguey, cuca, etc., a little higher up, potatoes 
and quinoa, a grain resembling rice, in the cool mountain 
regions, and still higher pasture lands for the llamas, wild 
sheep and other wild animals. All the animals, wild as well 
as domesticated, belonged to the Inca. At the annual great 
hunts there was a general muster of the people of the district 
to round up all within the hunted territory. Beasts of prey 
were killed, but discrimination was used, and only the male 
deer and the inferior sort of sheep were killed for food. 
The rest of the sheep were sheared and turned loose again. 
Of all the people on the American continent the Peruvians 
alone kept domestic animals, and they only llamas, alpacas 



n8 EVOLUTION OF GOVERNMENTS AND LAWS 

and other animals of the sheep kind. The llamas were used 
as pack carriers. In tilling the soil the natives had no assist- 
ance from draft animals. All was done with human strength. 
The value of manures was well understood, and extensive use 
was made of the guano deposits on the islands near the coast. 
Vast labor was expended in terracing the steep mountain sides 
and for the purposes of irrigation, aqueducts, which would do 
credit to any country, were constructed of closely fitted and 
cemented stone. One traversing the district of Condesuyu 
extended over four hundred miles. In the execution of these 
works the usual engineering difficulties were met and success- 
fully overcome, rivers were bridged, mountains tunneled and 
the waters of the lakes and reservoirs in the highlands stored 
and distributed along the slopes where moisture was most 
needed. In spots where there was lack of rainfall and no 
means of irrigation, pits were dug to a considerable depth to 
take advantage of the moisture from below, and by rich 
manuring crops were raised in these cellar like gardens. 
While the implements of agriculture were of the most primi- 
tive kind, and no aid was obtained from draft animals or 
machinery, the results were satisfactory and Peru was pre- 
eminently a land of plenty. These results flowed from the 
governmental policy and as a result of the education and di- 
rection imparted by the orders of the Inca. The compara- 
tively small numbers engaged in mechanical arts were also 
instructed in their callings and, while the use of iron was 
unknown, skillful use was made of gold, silver, copper, and 
tin. Tools nearly equalling steel in hardness were made of 
copper alloyed with tin. The art of weaving was well ad- 
vanced, though by primitive methods. In cutting and moving 
granite and other hard stones they were well skilled. By 
what process the immense blocks, containing hundreds and 
even thousands of cubic feet each, were taken from their 
beds in the quarries, moved long distances and placed in the 
temples and palaces is unexplained. 

Their architecture is said to be wanting in grandeur and 
finish. They constructed no high buildings. Those even of 
greatest pretensions rarely had a second story. The walls 



PERU 119 

were massive but without openings other than doors, and the 
roofs were often thatched. This may not be due altogether 
to a want of boldness of conception, for the frequency of 
earthquakes rendered this style best adapted to safety and 
permanence. In bridging streams and chasms they exhibited 
both ingenuity and skill. Suspension bridges two hundred 
feet or more in length were found by the Spaniards and con- 
tinued in serviceable condition for many years. They were 
supported by ropes stretched between stone buttresses. Though 
the products of Peru were sufficiently diverse to afford a basis 
for much internal commerce, and though gold and silver in 
great abundance were produced and used in ornamenting the 
temples and making vessels and implements for use and orna- 
ment for the Inca, no such thing as money or any substitute 
for it was known. Fairs held three times a month in suitable 
places afforded at the same time a holiday and opportunity 
for exchanging products by direct barter. 

Ancient Peru presents an instance of a thoroughly organ- 
ized state, standing alone on a continent filled with scattered 
tribes of savages, but built from material similar to the chaotic 
mass filling the balance of the land. Its policy was clearly 
defined and steadily and successfully carried out. It brought 
order out of chaos. It waged war on its borders, that the 
area of internal peace might be enlarged. It exacted industry 
and gave security and plenty in return. It enforced morality 
and exacted strict obedience to authority and observance of 
the forms of a religion exceptionally free from gross super- 
stitions and elevated in tone for a people so environed. No 
other known government ever succeeded so entirely in or- 
dering the private affairs and daily life of its people, and no 
other dynasty labored so persistently to guard the people from 
want. Without any aid by suggestion from other growing 
civilizations, it evolved a system based on fundamental ideas 
so clear, strong and well enforced as to challenge the wonder 
and admiration of all. 

It has been a source of wonder to some that the wants 
of the masses could be so well supplied when the burden rested 
on the toilers, not only of cultivating their own lands and 



120 EVOLUTION OF GOVERNMENTS AND LAWS 

supplying their own needs, but also of tilling the lands of the 
Inca and the Sun as well, besides building and maintaining all 
public works and performing military service. We have no 
exact data showing the numbers of the nobility, priesthood 
and inferior officials or of the common people. Probably the 
ratio of privileged classes to the whole population was some- 
what higher than in most of the more advanced nations of 
modern times. But the ratio of the whole number of offi- 
cials, priests and soldiers to the total population was much 
less than in the military states of Europe. Another element 
of great importance, which seems to be overlooked, is the 
entire absence in Peru of those classes 'who live in luxury 
from rents of land, interest on money and other forms of 
income from property. In all modern states these constitute 
the most favored portion of the people, and the cost of their 
maintenance is greatest. As they render no service in return 
for their incomes, whatever they consume is a net loss to 
the producers. Still another and more numerous, though per- 
haps less costly class, found in all the most advanced modern 
nations, is the idle poor, who are either unable or unwilling 
to find employment. The Inca found useful employment for 
all. The judges administered the law and paid advocates 
were unknown. 

The system of government was so thorough that there was 
no room for a complicated code of laws. Each was required 
to do his appointed share of labor and given his due return. 
His assurance against want in times of misfortune lay in the 
public storehouses and the law which required his neighbors 
to till his field, when he was unable to do so. There were 
no deeds, mortgages, leases or other contracts relating to 
land, for each had the use but not the ownership of the soil. 
There were no notes or other obligations for money, for there 
was no money. There were no slaves nor contracts of hire. 
All served the Inca and helped each other. There were no 
taxes to be raised from a sale of crops. The produce of the 
Inca's lands, mines and flocks supported the government and 
the lands of the Sun, the priesthood. Neither the tax gath- 
erer, the usurer nor the landlord ever came to seize and sell 



PERU 121 

the newly ripened harvest. The government was never a 
debtor, nor yet wanted means to arm and equip soldiers, build 
palaces, temples, roads, bridges and other public works. 

Authorities 
W. H. Prescott: History of the Conquest of Peru. 
C. Enoch: Peru. 
Encyclopaedia Britannica. 



CHAPTER VI 



Egypt 



To the records made by themselves only we must look for 
accounts of the earliest civilization of the Egyptians. Of ne- 
cessity therefore the first to be known is concerning a people 
already sufficiently advanced to have developed a written lan- 
guage, except as it may be carried back by traditions passed 
down from earlier times and subsequently recorded. Though 
the surroundings of the valley of the Nile suggest conditions 
under which a race of people might have developed in peace, 
secure against attacks from external enemies, history fails 
to reach such a time. Whether the ancient Egyptians, whose 
descendants still occupy the country, originated in Egypt or 
elsewhere cannot be answered from any reliable evidence. 
Like most people, they begin their account of their nation 
with a mythical line of supernatural rulers, and a time when 
the gods resided on earth and gave mortals the benefit of 
their instruction. If the truth be that the human race is the 
product of evolution from the lower to the higher, the ad- 
vancement has not been steady and continuous with any people 
of whom we have a long history. Times of marked intel- 
lectual activity as well as of moral advancement have been 
followed by periods of torpor and degradation. It may there- 
fore well happen, that at one period the people may look back 
to a prior time as a golden age, when men were wiser and 
better, and when the gods came nearer to them. Thus every- 
where we find people looking to their ancestors for wisdom. 
The accumulation of knowledge at any period is the product 
of the past, for which prior generations must be given credit, 
and there is a tendency to credit it all to some favorite age. 
Whether the Egyptians were pioneers, in advance of all other 
people in civilization, cannot be stated with certainty, but that 
they have left unmistakable proofs of the antiquity of their 

122 



EGYPT 123 

advancement, which antedate those of any other people may 
be safely asserted. Owing to the peculiar climate of the coun- 
try and the desire to leave enduring monuments, the investi- 
gator of today may study at first hands the work of Egyptians 
who lived many thousands of years ago. He may read on 
granite monuments, or even on frail papyrus, the inscriptions 
of Egyptian artists and scribes in the original hieroglyphics 
as made by themselves long prior to the time of Moses or 
Joseph. The profound interest with which students of all the 
sciences to which they are related have in recent years stud- 
ied these ancient records, and the diligence and success with 
which their efforts to decipher and interpret them have been 
rewarded, have added greatly to our knowledge of the past 
and of the arts, which before were traced only to people 
nearer to us in time and in blood. 

The starting point, from which Egyptian history is written 
in modern times, is the reign of Menes, who united the upper 
and lower countries and established his capital at Memphis. 
The date of his reign is not definitely known, but it could not 
have been much later than 4000 B.C. and may have been 
much earlier. From his time a list of successive dynasties is 
given by ancient writers, and Herodotus tells us, that the 
priests read to him from a papyrus the names of 330 mon- 
archs, who ruled as his successors to the reign of Moeris. 
After him came a great monarch, whose name he calls Sesos- 
tris. He also says that they told him that in the time of 
Men (Menes), all Egypt except the Thebaic canton was a 
marsh, none of the land below lake Moeris then showing itself 
above the surface of the water. There are no records from 
which a connected account of the successive rulers can be 
constructed, and it is quite impossible to fix dates in the early 
reigns with any fair degree of accuracy. How many people 
were ruled over by Menes and what system of government had 
prevailed before his time, we do not know, nor can the state 
of the arts at that time be declared, nor the condition of the 
valley of the Nile be described further than that it was ex- 
ceedingly fertile, then as now, and subject to yearly overflow 
from the river. Whether it then contained forests and waste 



124 EVOLUTION OF GOVERNMENTS AND LAWS 

lands or was already cleared and cultivated is unknown. How 
long the people had then been dwellers in the valley of the 
Nile, whence they came and how they had lived in prior times, 
are questions that cannot be answered. 

The contemporaneous inscriptions do not begin till about 
the time of what is termed the Fourth Dynasty, if the scholars 
are correct in their inferences. The three great pyramids of 
Gizeh, built as enduring tombs of successive Pharaohs, are 
assigned to this time. These great works evidence a numer- 
ous population, without whose labor they could not have 
been constructed, a strong government, able to command the 
services of the necessary workers, and also indicate peaceful 
relations with all other people, for war of any great magni- 
tude would almost certainly have absorbed the attention and 
energies of the nation to too great a degree to allow such 
vast works to be carried forward at the same time. These 
monuments tell us with certainty that great numbers of people 
worked in concert for their completion, and that the govern- 
ment must have been firmly established and the people ac- 
customed to the exercise of authority. The implements used 
in their construction prove that the art of metal working was 
well advanced. The power employed in transporting the ma- 
terial and placing it in position, as shown by the pictures and 
inscriptions, was mainly the combined strength of great num- 
bers; but Herodotus tells us that machines were used for 
raising the great stones to their positions, and this seems prob- 
able, though we have no description of them. The pictures, 
which have been preserved, exhibit the evolution of dress 
from a simple short skirt, not much more to the purpose than 
a breech clout, to a costume consisting of a shirt, skirt, long 
over dress, sandals, wig, etc. It is not necessary to mention 
mere ornaments, for the lowest races all indulge in ornaments 
according to taste and ability, though clothing be considered a 
superfluous luxury or not thought of at all. At the time of 
the building of the great pyramids the evolution in dress was 
not much past the primary stage and short skirts were in 
fashion. In agriculture, though the implements used were 
crude, the variety of crops raised was quite extensive, and 



EGYPT 125 

the people were well supplied with cattle, sheep, goats and 
donkeys, as well as with fowls, especially geese and ducks. 

In the earliest times of which we have any record, a division 
of the country into the upper or south and lower or north was 
recognized. The political organization of the upper country 
seems to have been in advance of that of the lower, and the 
internal development of it probably preceded that of the more 
marshy delta. While the government of Egypt was at all 
times monarchical in form, the actual administration was 
ordinarily in accordance with established rules, which were 
recognized as limitations on the power of the officials. The 
people, however, were without substantial guarantee against 
the oppression of despotic Pharaohs, and the construction of 
the great pyramids was a heavy burden, mercilessly imposed 
on his subjects by the king. 

According to the earliest accounts, under what is termed the 
old empire, upper Egypt was divided into provinces, the local 
government of each of which was hereditary in a noble family. 
The same family also ordinarily held the office of high priest. 
In those times the nobility seem to have held a large share of 
political power, and the central authority to have been less 
potent than in later times. The division of lower Egypt into 
provinces or nomes appears to have followed later. 

The character of the government was unmilitary. The 
worship of the gods, maintaining the temples and honoring 
the dead, occupied a large share of the attention of the gov- 
ernment, and required the services of a numerous priesthood, 
always closely allied to the civil authorities, and who usually 
combined priestly functions with administrative ones. There 
were thirty "great men of the south" having unequal districts 
and powers. A governor of a district was also a judge and 
ruler of the chief town. It was the fashion to combine a 
long list of official titles, many of which were often without 
real significance. As judges they were priests of Ma'at the 
goddess of truth. Over these thirty chief men of the South 
was a governor of the south. The lower country was after- 
ward divided into similar nomes and placed under a governor 
of the north country, but at what date these v/ere established 



126 EVOLUTIO'N OF GOVERNMENTS AND LAWS 

does not appear, though the title of "governor of the north 
country" appears in inscriptions of the time of the Middle 
empire. In each of the small districts into which the country 
was divided, there was a court of justice, a storehouse for 
corn and local militia. The central power was mainly con- 
cerned with the revenue and filling the treasure houses 
There was a central finance department, which employed 
numerous superintendents and scribes to attend to the col- 
lection and care of the public revenues, most of which were 
received in kind from the fields, mines and workshops. There 
was a superintendent of agriculture, who had general charge 
of matters connected with overflow and irrigation, and also 
a superintendent of the forests in the border country up the 
Nile. 

The chief judge was the highest official under the king. 
He was the "leader of the great men of the south and of the 
north" and "second after the king in the court of the palace," 
to these were often added a long list of priestly and other 
titles, some of which indicated real power and substantial 
duties. Under him were numerous judges of different de- 
grees. Six great courts are spoken of, made up of local 
judges. Great respect was entertained for law and the 
judicial offices. 

In each province or nome there were officials of high and 
low degree charged with various public functions. As under 
most modern governments, there was a constant struggle to 
gain official preferment, and the main end of all public ser- 
vants was the gathering of revenues for themselves and those 
under whom they served. The beneficial service rendered for 
the multitude was in public works, the administration of jus- 
tice and protection against external enemies. Of the public 
works those connected with agriculture and the distribution 
of water by canals, reservoirs, etc. were highly useful, while 
the construction of temples and tombs, for which no other 
people seem to have had so much regard, gratified the pride 
and accorded with the sentiments of the people. 

The monuments and records were made to preserve the . 
memory of the rich and powerful. The inscriptions show the 



EGYPT 127 

state and surroundings of the nobility, their storehouses and 
servants. As the monuments, on which these inscriptions 
appear, were constructed under the orders of those whose 
memory they perpetuate or their friends, the purpose they 
subserve is primarily to attest their importance. What is 
shown of the condition of the lower orders of society, is 
merely as incident to the state of the chief. The old empire 
exhibits a nobility and priesthood with power over the peas- 
ants and serfs firmly established, much wealth and luxury for 
the higher orders, and settled habits of industry enforced on 
the poor. The middle empire shows an extension of the 
official system, but no marked change in the organization of 
society or in the theory of the government. How numerous 
a class of independent tradesmen or small land owners ex- 
isted at any period cannot be definitely determined, though 
there appear to have been some such. 

The Twelfth Dynasty, covering the period of about the 
twentieth and twenty-first centuries B.C., is spoken of as a 
time of good government, prosperity and advancement in 
learning. It was the classical age of letters, in which the 
standard of good writing was established. Afterward fol- 
lowed a period of weakness and decline, at the end of which 
the country was invaded by the Hyksos or shepherd kings 
from the northeast. The particulars of their invasion and 
rulership are not preserved, but it is clear that the ancient 
Egyptian people were not displaced, nor were the laws and 
customs of the invaders imposed on the conquered nation. 
They levied tribute and compelled submission to their power 
for a time. 

The new empire began with Ahmose who drove out the 
Hyksos and followed them into the south of Palestine. Un- 
der his reign began the military age, in which Egyptian arms 
were carried into remote regions. Palestine and Asia Minor 
to the Euphrates were overrun by the monarchs of the Eigh- 
teenth and Nineteenth dynasties and the country to the south 
was subdued : Tribute was exacted from the conquered na- 
tions, but Egyptian civilization failed to take root and grow on 
any foreign soil. Contact with distant people had its effect on 



128 EVOLUTION OF GOVERNMENTS AND LAWS 

the Egyptians, and the isolation in which they had apparently 
lived during all of the early dynasties was at an end. With 
varying success they fought the Asiatics on the north and 
the Ethiopians on the south. Thothmes III crossed the Eu- 
phrates and received tribute from many nations. Contact 
with distant people gave new ideas as well as tribute to the 
Egyptians. Amenhotep IV attempted to reform the religion 
and set up the worship of the Sun god as the only living god. 
He sought not merely to introduce the worship of this deity 
but also to destroy all the old gods. The change however 
failed to endure, and under his successors the old worship 
was restored. 

Under Ramses II Egypt seems to have reached the zenith 
of its power, and of activity in the construction of temples 
and other great public works. With the departure of the 
Hyksos and the establishment of the new empire some changes 
in the organization of the government took place. The an- 
cient nomarchs and local landed aristocracy gave way to royal 
officials, and landed property became concentrated in the pos- 
session of the king and the priesthood. This change is by 
some attributed to military rewards, incident to the wars 
against the Hyksos, but in Genesis it is recorded, that through 
the policy of Joseph in storing up a vast supply of grain dur- 
ing the seven years of plenty and then selling it to the people 
during the succeeding seven years of famine, Pharoah came 
to own all the land except that belonging to the temples. With 
the ownership of all the landed property, from which the 
king exacted one-fifth for rent, his power became despotic, 
and there were no strong subjects to check it. The middle 
order disappeared, leaving the king and his officials at the 
top and a multitude of slaves at the base of the social struc- 
ture. Military chiefs and foreign mercenary troops became 
conspicuous. It was possible for foreigners to hold high po- 
sitions ; thus Joseph was sold by his brethren to Potiphar, who 
placed him at the head of the household, and afterward 
Pharaoh raised him to the highest office under the crown. 
The family of Jacob came into Egypt in great favor, due to 
the influence of Joseph, but afterward were reduced to hard 
service under severe taskmasters. 



EGYPT 129 

A marked characteristic of the system of government was 
minuteness of details in official orders and reports. The 
scribe was always at hand to note down every item of reve- 
nue received, every expenditure from the treasury, as well as 
every public act of the officials. A large proportion of the 
population consisted of serfs and bondmen, organized by 
companies under overseers, who drove them to their tasks as 
mercilessly as is usual with slaveholders. The workmen were 
divided into companies of artisans and laborers in each dif- 
ferent kind of employment, and were treated with rigor and 
contempt by their superiors. Above them were officials of 
all degrees from the chief of the company to the governor. 
The laborers employed in the tombs and on the public works 
received their rations from the public granaries and store- 
houses. Records kept by chief workmen are still extant, 
showing the names of the workmen, the days on which they 
worked and failed to work and the reasons for failure. Some- 
times strikes were caused by delaying or withholding their 
rations. Herodotus says the people were divided into seven 
distinct classes. Priests, warriors, cowherds, swineherds, 
tradesmen, interpreters and boatmen. That interpreters 
should be mentioned as a class shows that in his time the 
intercourse with foreigners was very extensive, else there 
could have been no need of many of them. 

The family ordinarily consisted of husband, wife and chil- 
dren. Polygamy was rare, though the rich made concubines 
of maid servants. Ramses II took three royal consorts. The 
marriage of sisters was practiced, and seems to have been of 
increased frequency after the Greek conquest, at least among 
the kings. Among the lower classes morals were very low, 
and marriages often informal and broken at pleasure. There 
was no seclusion of women as under Mohammedan rule. 
Except among the baser sort, the natural bonds of affection 
between parents and children appear to have been as strong 
as elsewhere, and a marked peculiarity of the people was their 
inordinate reverence for and care of the dead. This did not 
end with embalming the body and building a costly tomb, but 
the dead required a distinct department of the government. 



130 EVOLUTION OF GOVERNMENTS AND LAWS 

Mothers nursed their children for three years, and in their 
early years kept them nude, but they had dolls and toys to 
play with. The school boy in ancient times was dressed with 
a girdle. Children of the upper classes were often sent away 
from home to school, even at a tender age. The school course 
included ethics, practical philosophy and manners. The road 
to political station was through the school, and the statesman 
must first become a scribe. A generous use of the rod was 
deemed essential to the proper development of the student. 
All classes appear to have shared to some extent in learning. 
Considering the great attention paid to letters by the Egyp- 
tians, it seems strange that connected histories have not been 
preserved to us. Fragments of official documents and cor- 
respondence and the inscriptions engraved on enduring monu- 
ments furnish the disjointed writings, from which the modern 
scholar must form his description of Egyptian civilization. 
They made much progress in astronomy, divided the year 
into 365 days and determined the direction of the poles with 
accuracy. In medicine the leading idea seems to have cor- 
responded with that not long since abandoned, that the more 
filthy and repulsive the substance, the more potent as a medi- 
cine. Many and most gross superstitions, too numerous for 
even a general description, were indulged in by all classes of 
the people. Something like a picture of the times is ex- 
hibited by the record of a celebrated case which came up in 
the time of Ramses IX (about 1100 B.C.). Under the gov- 
ernor in Thebes, there was a "prince of the town" over the 
eastern part, and a "prince of the west" or "chief of the 
police of the necropolis" over the western part, the city of 
the dead. Complaint was entered by the prince of the town 
that tombs in the necropolis had been robbed. The court 
having jurisdiction of the case consisted of "Cha emuese the 
superintendent of the town and governor" assisted by Nesan- 
ni, scribe of Pharoah and Neferckere-em-per-Amun the 
speaker of Pharaoh. A commission was appointed by the 
court to examine the tombs and report. This was done, and 
the report describes circumstantially what pyramids and 
mummy pits were examined. Out of ten, nine were found 



EGYPT 131 

uninjured. As to the other the commissioners reported "The 
pyramid of the King Sebekemsaf. It was found that the 
thieves had bored a mine and penetrated into the mummy 
chamber. They had made their way out of the outer hall 
of the tomb of Nebamun the superintendent of food under 
Thothmes III. It was found that the king's burial place had 
been robbed of the monarch; in the place also where the royal 
consort Nubch'as was buried the thieves had laid hands on 
her." "The governor and the prince vassals ordered a thor- 
ough examination to be made, and it was proved exactly by 
what means the thieves had laid hands on this king and on 
his royal consort." 

The examination of the private tombs disclosed that those 
of two "singers of the high-priestess of Amon Re, King of 
the gods" had been broken into and other private tombs. "It 
was found that they had all been broken into by the thieves, 
they had torn the lords (i.e. the bodies), out of their coffins 
and out of their bandages, they had thrown them on the 
ground, they had stolen the household stuff which had been 
buried with them, together with the gold, silver and jewels 
found in their bandages." The commission so reported, and 
the prince of the necropolis sent in the names of the sup- 
posed thieves, who were immediately arrested. They were 
"examined," that is "beaten with stick on their hands and 
feet," until they confessed that they had entered the tomb 
of the king and taken rich ornaments of gold from the mum- 
mies of the king and queen and divided the booty among the 
eight robbers. To supplement and make good their confes- 
sion they were required to identify the pyramid they had 
robbed. The governor and royal scribe commanded them to 
be taken in their presence to the necropolis, where they identi- 
fied the tomb of Sebekemsaf as that to which their confession 
referred. The court thereupon made report to the Pharaoh, 
who alone could pronounce sentence in the case. Meanwhile 
the thieves were placed in custody of the high priest of Amon 
and confined in the prison of the temple! On suspicion of 
other desecrations a metal worker of bad repute was ar- 
rested and "examined." He confessed that he had been in 



i 3 2 EVOLUTION OF GOVERNMENTS AND LAWS 

the tomb of Ese, wife of Ramses II but, when taken to show 
the scene of his crime, he pointed out the graves of the chil- 
dren of Ramses II, in which no one had been buried. There- 
after, "the princess examined the tombs and the large cham- 
bers in the place of the beauties, in which the beautiful royal 
children, the royal consorts, the royal mothers and fathers of 
the mothers of the Pharaoh rest. They were found unin- 
jured." Thereupon there was great rejoicing and a "great 
embassy to the town consisting of the inspectors, the chiefs 
of the workmen of the necropolis, the officers of the police, the 
police and all the bondservants of the necropolis of western 
Thebes." 

Three years later, other robberies having occurred, about 
sixty arrests were made, including many officials of low rank, 
a scribe of the treasury of Amon, a priest of Anion and one 
of Chons. They had robbed the outer chambers of the tombs 
of Ramses II and Sety I and sold the stolen property. A 
quarrel over the division of the spoils led to the discovery. 
This capture did not end the thefts, and it was finally deter- 
mined to abandon the tombs in the desert in order to save the 
mummies. These were moved from place to place, and finally 
concealed in a deep rocky pit in the mountains of Der-el-bahri, 
where they reposed until modern robbers found the pit in 
1875, and in 1881 the authorities were informed of it, and 
the mummies of all the great monarchs of the new empire 
were brought to light. Great regard for the remains of the 
dead is not exclusively a trait of the Egyptians, but they were 
more lavish in their expenditures for the preservation of the 
bodies of the dead than any other people. As the occurrences 
above mentioned show, their care did not end with embalming 
the bodies and building vast tombs for them, but continued 
in watching and preserving the necropolis from generation 
to generation. 

Under the old empire there were six courts of justice or 
great houses, at the head of which was a chief judge. Each 
of the "thirty great men of the south" was a judge and dis- 
trict chief and a member of one of the great houses. The 
"governor of the south" alone had a seat in all. These great 



EGYPT 133 

men had served as scribes and inferior officers of the court 
before promotion to the full dignity of judges. Besides these 
there were local judges in the towns. The special god of the 
judges was Ma'at the goddess of truth. All judges of high 
rank served as her high priests. During the middle empire 
this organization of the courts disappeared. While the office 
of chief judge continued, even under the New Empire, the six 
great houses were no more. Under the new empire the com- 
position of the courts varied from time to time, including 
priests and laymen in varying proportions, but courts were 
held at fixed places where justice was regularly administered. 
The procedure seems to have been simple. The court being 
seated the contending parties in civil cases came before it 
standing. The plaintiff first preferred his complaint orally, 
the defendant was then required to answer, after which the 
court gave judgment. The successful party then turned to 
the other party and stated to him the terms of the judgment, 
whereupon the loser said, "I do it, indeed I do it, I do it." 
What process followed in case of failure to perform is not 
clear. 

In criminal cases the governor preferred the accusation as 
plaintiff, and the defendant then answered to it, thereupon 
the court seems to have filled the place substantially of a jury 
and found the prisoner guilty or not guilty, this finding was 
then forwarded to the Pharaoh, who pronounced sentence. 

That the Egyptians had written laws there seems no reason- 
able doubt, and it was claimed that they were composed by 
Thoth, the god of wisdom. The ancient law books have not 
been preserved and their contents come down to us only in 
fragments. However complete the written laws may have 
been, they do not appear to have restrained the kings who 
chose to override them, yet respect for the forms of law seems 
to have had quite a firm hold. Thus Pepy, in the Sixth Dy- 
nasty, established a special court to inquire into the acts of 
some of his courtiers, and Ramses III created a special court 
to try members of his household, who had conspired against 
him. The record of the court of the proceedings against one 
of the conspirators is a model of brevity. 



134 EVOLUTION OF GOVERNMENTS AND LAWS 

"Penture formerly bore another name. He was brought 
before the court, because he had joined with his mother Tey, 
when she conspired with the women of the harem, and be- 
cause .he acted with hostility against his lord. He was 
brought before the vassals that they might question him. 
They found him guilty, they dismissed him to his house ; he 
took his own life." Before this investigation was closed an 
incident occurred, which reflects severely on the special court 
organized for the investigation. It was discovered that the 
accused women of the harem had sought out three members 
of the commission and, with them and Pai'es, the chief culprit, 
had "made a beer house/' that is, held a revel. But they also 
were apprehended, and "their punishment was fulfilled by 
the cutting off of their noses and ears." 

While the power of Egypt continued to be great, it was 
not extended after Ramses II. During the Twenty-fifth Dy- 
nasty Egypt was ruled by Ethiopian kings, who however were 
not strangers to Egyptian civilization, if indeed they were not 
of Egyptian blood. At intervals after the time of Ramses 
there were wars with the Assyrians with varying success, till in 
the year 662 B.C. Egypt became an Assyrian province. Eight 
years later, however, with the aid of Greek mercenaries they 
were driven out. Psammetichus founded the Twenty-sixth 
Dynasty, which endured a little more than a century. During 
this period there was much intercourse with the Greeks. 

In 525 B.C. Cambyses invaded Egypt and reduced it to a 
Persian province. In the reign of Artaxerxes the Egyptians 
revolted and were aided by the Athenians, but without suc- 
cess. About 411 B.C. another revolt proved successful and 
Egypt remained an independent kingdom till about 343 B.C. 
when it was again overrun by the Persians, who maintained 
their ascendency till Alexander's conquest. Though under the 
Ptolemies Egypt was again an independent kingdom, it was 
under Greek rulership. When the Romans came the ruler- 
ship passed into their hands, and since their time there has 
been no such nation as Egypt. Though the land, the river 
and people are to all appearances substantially the same, the 
spirit is wanting, and Egypt has been dead for more than two 



EGYPT 135 

thousand years. Indeed the peculiar civilization, which still 
astonishes the world by its enduring monuments, can hardly 
be said to have existed in full vigor much later than the twelfth 
century B.C. 

With the rise of the Asiatic and European nations, the mili- 
tary spirit of the Egyptians developed for a time, and their 
power was extended in all directions, yet though the Greeks 
borrowed their arts and their learning, and the light of their 
ancient civilization spread into Europe and Asia Minor, they 
planted no colonies which presented new and advancing types 
of the mother country. Nor to this day has the civilization 
peculiar to any other country taken firm root in Egypt. To all 
appearances the fellah of today is very nearly what his ancestor 
of three thousand years ago was, but the ruling spirits, who 
planned the great works and ordered the affairs of Egypt, 
are no more. The peasant serf is there, oppressed through 
taxation as severely as his ancestors were under the Pharaohs. 
He has learned to submit without resistance to the burdens 
imposed by foreign masters, as his forefathers submitted to 
the orders of Cheops in building a pyramid. Unlike the Chi- 
nese, the Egyptians have never been able to impose the spirit 
of their civilization on their conquerors, nor on the other hand 
have the conquerors been able to imbue new life into their 
subjects and by education develop a new civilization. The 
greatest marvel is that with the constant influx of Europeans 
and Asiatics into the rich valley, the type of man dwelling 
there has been modified to so slight a degree. The valley of 
the lower Nile is the tomb of a once great people, and the 
toiling peasants of today are hardly better representatives of 
the ancient spirit than the mummies, which have been pre- 
served with so much care through the long centuries. Since 
the Greek conquest the government and laws of Egypt have 
been such as a foreign ruler has seen fit to impose. 

In recent years there has been an awakening of a national 
spirit in Egypt, and as a result of the political upheavals follow- 
ing the great war nominal, if not complete, independence has 
been achieved. 



136 EVOLUTION OF GOVERNMENTS AND LAWS 

Authorities 

J. Gardner Wilkinson: The Manners and Customs of the 

Ancient Egyptians. 
Adolph Erman : Life in Ancient Egypt. 
George Rawlinson : Ancient Egypt. 
J. P. Mahaffy: Empire of the Ptolemies. 
W. M. F. Petrie : A History of Egypt. 
James H. Brestead : Ancient Records of Egypt. 
James Baikie : The Glory of the Pharaohs. 
Herodotus. 



CHAPTER VII 

Chaldea, Babylonia, Judea and Persia 

While only a small part of the people of Europe trace their 
descent from inhabitants of the territory in Asia now domi- 
nated by the Turks, religious teachings have caused them to 
regard some spot in or near this territory as the earliest home, 
not only of their own progenitors, but also of the whole hu- 
man race. Egyptian civilization had its influence on Greeks 
and Romans, yet it has been far less regarded than that of 
the early people of the valleys of the Euphrates and Tigris 
and the region bordering on the eastern end of the Mediter- 
ranean. It is impossible to accurately measure the extent to 
which the religion, morals, laws and governments now exist- 
ing, not only throughout Europe but wherever Europeans 
dominate, have been moulded by the lessons transmitted to 
us from those people. Comparative philology teaches the 
kinship of people long supposed to be altogether foreign to 
each other, and the Persians, Brahmans of India, Germans 
and allied people of Europe are all assigned to one race. 
Nevertheless the influence of the civilization of ancient Chal- 
dea, Babylonia, Persia, Media, Assyria, Palestine, Phoenicia 
and Greek Asia has not descended to us with the blood of 
ancestors but mainly by example and teachings. The Biblical 
account of creation fills a space which substantially all people 
fill with fanciful and romantic accounts of a beginning. Be- 
lief in a particular account usually depends on the educational 
influences to which the individual is subjected. Records 
reaching back to the origin of any race of people are of ne- 
cessity wholly lacking. 

The earliest clear evidence of man and his works in the 
regions named is derived from the ruins of ancient cities. 
The oldest of these of which we have knowledge are of the 
Chaldeans, who occupied the lower valley of the Euphrates 

i37 



138 EVOLUTION OF GOVERNMENTS AND LAWS 

and Tigris and neighboring country. According to the Bible, 
the Israelites derived their origin from the city of Ur in 
Chaldea. "And Terah took Abram his son and Lot the son 
of Haran his son's son and Sarai his daughter-in-law, his 
son Abram's wife, and they went forth with them from Ur 
of the Chaldees to go unto the land of Canaan, and they came 
unto Haran and dwelt there". 1 

The first people of whom any accounts are attainable, were 
familiar with the leading mechanical arts, the use of money, 
the cultivation of the soil, the use of domestic animals and 
the art of writing. As in Egypt formal written contracts 
were common and are found on the clay tablets disclosed by 
recent excavations. Abraham bought land and paid for it 
in silver. There were cities and villages, merchants and 
traders as well as hunters, herdsmen and husbandmen. How 
much or what part of their arts, if any, were borrowed is 
not known. The earliest records introduce us to the land of 
Shinar with its cities of Babel, Erech, Accad and Calneh and 
out of this country went forth Asshur and builded Nineveh. 

From the earliest times throughout the whole region we 
are considering, with some exceptions hereafter noticed, the 
character of the governments, of which we have historic ac- 
count, was military despotism without check or limitation on 
the power of the kings. Nothing can be more dreary than 
the recital of the rise and fall of successive dynasties, always 
tending to reproduce the same evils. Through the ancient 
tablets and cylinders, the Bible and the writings of historians, 
we are informed of the names and the military feats of many 
rulers styled successively, Chaldees, Babylonians, Assyrians, 
Medes, Persians, Parthians, Scythians, Bactrians, Arabs, 
Turks and Tartars. With all of them the fundamental idea 
of government has been similar if not identical, paternal 
kingly power. While this is clearly apparent, the structure 
of society at different periods has undoubtedly passed through 
many changes and modifications. These, owing to the vanity 
of kings and the lack of independent historians, are difficult 
to trace. The influence of the priesthood and of the religious 

Genesis XI-31. 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 139 

beliefs of the people has always been very great, and it is to 
this portion of the earth and neighboring portions of Asia, 
that we look as the birthplace of all the great religious sys- 
tems, which have so profoundly impressed mankind, and 
which are now taught throughout the world. Moses, Zoro- 
aster, Buddha, Christ and Mohammed have successively 
taught lessons which are accepted by generation after gener- 
ation as the direct and authoritative expression of divine 
truth. The profound influence of these various teachings, not 
only on private morals but on governments, human laws, cus- 
toms and the structure of society, is to be noticed everywhere. 
In the earliest times of which we have accounts, we find the 
people prone to have a special god or gods for each tribe or 
nation which gained a well defined status as such. The early 
Hebrews did not deny the existence of other gods besides 
Jehovah, but maintained his superiority. The Old Testament 
mentions numerous gods of the people with whom the Israel- 
ites contended, as really existing, but unworthy to be fol- 
lowed. The people were taught to be faithful to their own 
god. It is impossible to assign a date for the earliest general 
adoption of a belief in a single god, not only supreme in 
power but without rival or participant in authority. This 
singleness of spiritual power accorded with the human des- 
potisms, which have flourished in that region, and contrasts 
with the sprightly pantheon of the Greeks, who were experi- 
mentalists and jealous of unrestrained authority. With an 
absolute despot at the head of the government, the distribu- 
tion of inferior and local authority was on the same princi- 
ple. Wherever the king delegated • his power to a satrap of 
a district, he ruled as a despot, accountable only to the king. 
The general purpose of all the different rulers, of whatever 
particular nation they chanced to come, in extending their 
dominions, was to collect tribute. There seems to have been 
very little disposition to interfere with the modes of life of 
the people or the local governments, so long as the tribute was 
paid. Egyptian conquest in Asia merely meant tribute from 
Asia to the Pharaoh, and when Egypt became subject to the 
Assyrians, and afterward the Persians, Egypt paid tribute to 



140 EVOLUTION OF GOVERNMENTS AND LAWS 

the king. The taxes were collected by the local authorities, 
and the satrap accounted to the king for the full sum charged 
to his districts. Some things relating to the primary or- 
ganization of society are known, polygamy and slavery were 
everywhere and at all times allowed. Surplus males were 
consumed in wars or converted into eunuchs for domestic 
service. The families and dependents of the rich were very 
numerous. Abraham's household as described in the Bible 
is doubtless typical of ancient as of modern patriarchal fami- 
lies. It is not to be understood, however, that all the people 
were included as members of such establishments. Babylon 
and Nineveh were very great cities. In order to maintain 
their vast multitudes of people, agriculture was carried on 
with great industry and success. Manufacturing flourished, 
and trade was extended to distant lands. The descriptions 
we have of the people of Babylon indicate that it had a vast 
combination of good and evil, like every other great city. 
That the people were industrious, skillful and intelligent is 
abundantly proved by history and the ruins still remaining. 
That they were fond of luxurious living and addicted to many 
vices hardly differentiates them from the dwellers in modern 
cities, yet some of their customs certainly appear most 
abominable. 

The recent discovery of the Code of Hammurabi affords 
us a copy of the written law of Babylon promulgated about 
2250 years B.C. (Still more recent researches on the site of 
ancient Assur have brought to light tablets inscribed with parts 
of the Assyrian code, considerable fragments of which have 
been translated. Full summaries of the available parts of 
these codes are given in the appendix.) There is no better 
index of the state of the civilization of a people than the code 
of laws under which they live. It indicates their industrial 
and business activities, their vices, their superstitions and their 
views of social duty. How long these codes remained in force 
we are not informed. It was probably 1800 years later than 
the time of Hammurabi when Herodotus visited Babylon and 
many changes had taken place. 

He tells us that once in each vear in each village the maid- 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 141 

ens of age to marry were collected all together in one place, 
while the men stood around them in a circle. The women 
were then sold for wives separately to the highest bidder. 
The rich Babylonians had to bid against each other for the 
favorite ones, each going to the highest bidder. When all 
the beauties were sold and the men ceased to bid, the ugly 
ones were sold to those who would take them with the least 
marriage portion, which was made up from the prices re- 
ceived from the sale of the loveliest. He mentions this as an 
excellent custom, but says it had fallen into disuse in his 
time, and that instead, the poor of the common people raised 
their daughters to be courtesans. This he attributes to the 
oppression of the rulers. He relates what he terms a most 
shameful custom connected with the worship of the Babylon- 
ian Venus. "Every woman born in the country must once 
in her life go and sit down in the precinct of Venus and 
there consort with a stranger." Seated in the enclosure of 
the temple with wreaths of strings about her head she must 
wait till a stranger throws her a coin and says "The goddess 
Mylitta prosper thee." She must then go with him whoever 
he be. He adds, that when this religious rite has been per- 
formed, no gift however great will prevail with her. This 
hardly seems a fair statement after reading what is said of 
the prevalence of prostitution. 

It seems reasonably certain that public morals were low 
at and after the time of which Herodotus wrote, and very 
probable that they were never high. The Old Testament is 
filled with narrations of the vile customs of the early Israelites 
as well as of the people with whom they came in contact, of 
whom apparently the Egyptians were the best, yet pure do- 
mestic life was not wholly unknown. Away from the cities 
and perhaps also within them the village system prevailed. 
The people lived under great diversity of conditions. 

Xenophon describes an Armenian village with houses un- 
derground entered by a well, with passage into them for their 
cattle, goats, sheep and fowls. There was a head man of the 
village. Seventeen colts bred as a tribute for the king, and 
provisions in plenty and considerable variety were found. 



142 EVOLUTION OF GOVERNMENTS AND LAWS 

In his march from the scene of the battle in which Cyrus was 
killed to Colchis, Xenophon mentions the villages of the 
Medes, Carducians and Armenians, but nowhere isolated 
dwellings. The Persians had some idea of established law 
beyond mere custom, and of the steady adherence to fixed 
rules for the determination of rights. Their laws were pro- 
mulgated by the king, recorded by scribes, and proclaimed 
throughout the empire. There were judges appointed by the 
king. Herodotus says that Cambyses, wishing to marry his 
sister, a thing contrary to Persian custom, 

"Called together the regal judges and put it to them 
'whether there was any law which allowed a brother, if he 
wished, to marry his sister.' Now the royal judges are certain 
picked men among the Persians, who hold their office for life, 
or until they are found guilty of some misconduct. By them 
justice is administered in Persia and they are the interpreters 
of the old laws, all disputes being referred to their decision. 
When Cambyses therefore put this question to these judges, 
they gave him an answer which was at once true and safe, 
"they did not find any law," they said, "allowing a brother to 
take his sister to wife, but they found a law that the king of 
the Persians might do whatever he pleased." 

While the Persian system was loose and imposed but little 
restraint on the satraps, either in the exercise of their author- 
ity over the people under them or in organizing a revolt, there 
were some regulations tending to efficiency and stability of 
the government. Royal commissioners were sometimes sent 
to inspect the workings of the government throughout the 
empire, and a system of posts was maintained by which dis- 
patches were forwarded rapidly. The garrisons in the cita- 
dels, as well as the army in general, were under the command 
of officers appointed by the king and not subject to the sat- 
raps. As all histories deal so much with wars and so little 
with peaceful conditions, we have to infer what took place 
in times of peace from the conditions described during times 
of war. In the perspective war occupies a greatly exaggerated 
space and creates the impression that the people were engaged 
in little else than fighting, when in fact peace was the rule. 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 143 

The earliest Babylonians were temple builders and devoted to 
their gods. Strong religious tendencies have ever been char- 
acteristic of the people of all the portion of Asia of which 
we are now treating. The idea of government seems to have 
persistently adhered to a single unlimited monarch. With 
the grosser forms of religious worship and with the corrupted 
organizations which profess the purer ones, form and cere- 
monial always fill a great space. These forms, to be impres- 
sive, must be marked out and defined by fixed rules, to which 
the people become accustomed. Revenues to maintain the 
priesthood and the temples must be derived by a system of 
tributes, paid really to the priests, but exacted in the name 
of" the deities. The alliance between the sovereign and the 
priesthood was necessarily close and, during much of the 
time, the king was the spiritual as well as the temporal head. 
In ancient Assyria the laws were promulgated in the name 
of Asshur, the head of their pantheon, as the Jews used the 
name of Jehovah to give sanction to theirs. The temples of 
the Assyrian and Babylonian gods required the attendance of 
a numerous priesthood, withdrawn partly and often entirely 
both from participation in military operations and ordinary 
callings. The system of irrigation by the aid of artificial 
canals, under which the valleys of the Tigris and Euphrates 
were brought to a high state of cultivation, evidences settled 
social order for a considerable period prior to the time of 
Hammurabi. The cities themselves could only come into 
existence under conditions of order and security to person 
and property. 

Recent researches have thrown much light on ancient Baby- 
lonian institutions, and many ancient tablets on which were 
written deeds and contracts of various kinds have been ex- 
humed and interpreted. Judicial functions were exercised by 
the priesthood, who also acted in the capacity of notaries 
and witnesses of written contracts, and the parties took an 
oath to perform the contract, the whole being attested by the 
priest and other witnesses. A deed to property seems to 
have been generally treated as a mortgage, which could be 
discharged on repayment of the purchase price, unless the 



144 EVOLUTION OF GOVERNMENTS AND LAWS 

vendor expressly renounced the right to redeem, in the deed. 
Even this did not cut off the right of his heir to recover the 
land by paying back the price. Sometimes the heirs joined 
in the deed in order to cut off the right of redemption. Mort- 
gages were familiar, the earliest form being that in which 
the use of land was transferred to the lender for the use of 
the money, rent being set off against interest. When the 
money was repaid the land was returned. Mortgages of lands 
and chattels were common. The business of banking was 
well developed and seems to have been largely in the hands of 
the priesthood. Interest was allowed and bottomry bonds, 
bearing a high rate but under which the lender got nothing 
in case of loss of the property by shipwreck, were common, 
as also were contracts of hiring, lease, partnership and other 
business transactions, and were executed with that freedom 
which always obtains in a great commercial city. 

In religion these people were polytheists, and their pan- 
theon was as well stocked as that of the imaginative Greeks. 
The personal qualities attributed to their several gods were 
so similar in many instances as to suggest identity. The 
genius for city building moved from the valleys of these 
rivers to the countries bordering on the Euxine and Mediter- 
ranean seas and afterward spread wherever the Greeks be- 
came dominant. But, so far as we know, the genius for 
popular government in cities was never developed in Asia, 
except in the Greek cities near the coast. Among the rural 
population, dwelling in their villages, tilling the soil and rear- 
ing domestic animals, there was a degree of independence. 
Herodotus speaks of the Medes revolting from the Assyrians 
and gaining their freedom, after having been subject to the 
latter for 520 years, and then tells how Duoces by playing 
the part of an upright judge succeeded in gaining kingly 
power. Herodotus saw through Greek eyes. Though Medes 
and Persians were fond of liberty perhaps in their early 
history, they had no genius for the establishment of any form 
of government other than that of an arbitrary despotism. 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 145 

JUDEA 

The Jews afford us through the Bible a later and more 
complete system of written laws than that of Hammurabi. 
Some of it was similar to and borrowed from Egypt's older 
civilization. Some of it was drawn from Babylon. All their 
laws, whether prescribing rules of conduct governing the re- 
lations between individuals or declaring religious duties and 
imposing burdens for the support of the priesthood, were 
promulgated as divine commands. The religious veneration, 
with which everything found in the Hebrew records has been 
regarded by the Christian world, renders it difficult to dis- 
passionately attempt to separate the truth of history from the 
setting of oriental exaggeration in which it is contained. 
When or by whom the writings passing under the name of 
the books of Moses were written is unknown. It can be said 
however, with confidence, that all the Old Testament has come 
down to us through the Jewish priesthood. Whether the 
regulations to be found in the five books attributed to Moses 
were in fact promulgated by him or not, it is clear that there 
was a concurrence in establishing these laws of both the tem- 
poral and the spiritual head of the Israelites. The authority 
which the people recognized was not Moses nor Aaron, but 
the unseen God, from whom it was proclaimed that the com- 
mands emanated. The purpose of all conscientious legisla- 
tors is to find and declare the rules which tend to promote the 
welfare of all. Many of the regulations contained in the 
laws attributed to Moses would appear to have but little ap- 
plication to a wandering horde, such as the Israelites were in 
their journey from Egypt to Palestine. It is not recorded 
that they then acquired any territory for the purpose of per- 
manent occupancy, yet there are very definite laws concerning 
real property. The people must have been very filthy and 
immoral, for a large part of the religious observances en- 
joined tend to cleanliness and orderly conduct. That their 
wealth consisted largely of cattle, sheep and other live stock 
is evidenced by the extent of the regulations concerning such 
property. Pigeons seem to have been extensively bred and 
were much used in the offerings. 



146 EVOLUTION OF GOVERNMENTS AND LAWS 

The ten commandments are written as the words of God 
repeated by Moses. The first four relate solely to matters of 
religion, but are regarded as authoritative and binding 
throughout Christendom today, and Sunday is observed as the 
Sabbath of his law. The fifth is an admonition to respect 
parents, more or less regarded. The remaining five are uni- 
ersally regarded as binding moral laws, the violation of either 
of which is a sin. While these commandments have been 
held of such high authority by all Christians, the other laws 
declared by Moses are not so well respected. Slavery even 
cf Hebrews was recognized. 

"If thou buy an Hebrew servant, six years he shall serve 
and in the seventh he shall go free for nothing." If bought 
with a wife, the wife went free with him, but if given a wife 
by the master, the wife and her children belonged to the 
master. "And if the servant shall plainly say I love my 
master, my wife and my children I will not go out free, then 
his master shall bring him unto the judges, he shall also 
bring him to the door or unto the door post; and his master 
shall bore his ear through with an awl, and he shall serve 
him forever." 

Daughters sold as servants were not given their freedom 
but, if taken to wife by the master or his son, were to be 
treated as wives and not sold to a strange nation. Murder of 
malice was punished with death, but a sanctuary was allowed 
for excusable homicide. The law of domestic relations in- 
culcated respect for both father and mother. Polygamy was 
permitted and in some instances almost compulsory. Mar- 
riage was encouraged, and a newly married man was exempt 
from going to war for a year. If brethren dwelt together and 
one of them died childless, the surviving brother should marry 
the widow, and her first born should succeed in the name of 
the dead brother. If the survivor refused to marry the widow, 
she might call him before the elders and have him condemned, 
and in their presence she shall "Loose his shoe from off his 
foot, and spit in. his face and shall answer and say, So shall 
it be done unto that man that will not build up his brother's 
house." 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 147 

The law of divorce was that, "When a man hath taken a 
wife and married her, and it come to pass tkat she find no 
favor in his eyes, because he hath found some uncleanness in 
her, then let him write her a bill of divorcement and give it 
in her hand and send her out of the house." She may then 
marry again. 2 

In Numbers chapter v. a provision is made for testing the 
faithfulness of a woman whose husband is jealous of her, 
which is similar to and probably suggested the medieval trials 
by ordeal. The status of women was not wholly dissimilar 
to that under the English common law. The vows (con- 
tracts) of men were binding, but those of unmarried daugh- 
ters might be annulled by the fathers and of married women 
by their husbands on the day when made, otherwise they 
should stand. Widows and divorced women were bound. 

The law of inheritance, as first established, seems to have 
recognized the rights of males only, but on the complaint of 
the daughters of Zellophehad it was amended as follows: "If 
a man die and have no son, then ye shall cause his inheritance 
to pass unto his daughters. And if he have no daughters, 
then ye shall give his inheritance unto his brethren. And if 
he have no brethren, then ye shall give his inheritance unto 
his father's brethren. And if his father have no brethren, 
then ye shall give his inheritance unto his kinsman that is next 
to him of his family." 3 

There was a settled policy, well calculated to preserve to 
each family its inheritance and prevent the crafty from per- 
manently engrossing the land or chattel property. Every 
fiftieth year was a year of jubilee, when all inheritances of 
land went back to the vendor. A sale could only be made 
till the next jubilee, except in walled towns, where a redemp- 
tion in a year was allowed. A similar principle was thus ap- 
plied to chattels. 

"At the end of every seven years thou shalt make a release. 
And this is the manner of the release. Everyone that lend- 
eth aught unto his neighbor shall release it, he shall not exact 

2 Deut. xxiv. 1-2. 
8 Numbers xxvii. 



148 EVOLUTION OF GOVERNMENTS AND LAWS 

it of his neighbor or of his brother because it is called the 
Lord's release. Of a foreigner thou mayest exact it again." 4 

"And six years thou shalt sow thy land and shalt gather in 
the fruits thereof. But the seventh year thou shalt let it rest 
and lie still that the poor of thy people may eat : and what 
they leave the beasts of the field shall eat. In like manner 
thou shalt deal with thy vineyard and thy oliveyard." 5 

Usury was strictly forbidden except when taken from 
strangers, and pledges of raiment must be returned by sun- 
down. For all manner of trespasses the parties should come 
before the judges and the party condemned should pay double. 
The protection of servants against the cruelty of masters was 
exceedingly meager. "And if a man smite his servant or his 
maid with a rod and he die under his hand, he shall surely be 
punished. Notwithstanding if he continue a day or two he 
shall not be punished for he is his money." 

If a man put out the eye or tooth of a man or maid servant 
he or she shall go free. If an ox kill a person the ox must 
be killed, but, if the ox has been wont to push with his horn 
in time past, the owner shall be put to death unless he pays 
his ransom. If the ox kill a servant, the owner of the ox 
shall pay the master thirty shekels of silver. A thief must 
pay three for one for an ox and four for one for a sheep; 
and if caught in the act and killed, no blood shall be shed 
for him. A party caught with stolen property must pay 
double. 

The criminal law was primitive and merciless. The punish- 
ments were death, maiming, beating or fine. The following 
offenses were punished with death : Murder, manstealing, 
cursing father or mother, adultery (both parties), witchcraft, 
lying with a beast, idolatry. 

"If thy brother the son of thy mother or thy son or thy 
daughter or. the wife of thy bosom or thy friend who is as 
thine own soul, entice thee secretly saying, Let us go and 
serve other gods which thou hast not known, thou nor thy 
fathers," thou shalt not consent "But thou shall surely kill 

4 Deut. xv. 1-2-3. 

8 Exodus xxiii. 10 and II. 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 149 

him, thine hand shall be first upon him to put him to death 
and afterward the hand of all the people." The father and 
mother of a ''stubborn and rebellious son" might bring him 
before the elders at the gate of the city and have him con- 
demned to be stoned to death. It hardly seems possible that 
there could be use for such a law. 

For offenses deemed of inferior degree the lex talionis had 
full sway, and is nearly identical with the code of Hammurabi. 

"Eye for eye, tooth for tooth, hand for hand, foot for foot, 
burning for burning, wound for wound, stripe for stripe." 

Very definite and minute provision was made as to what 
might be eaten and as to the manner in which animals should 
be slaughtered for food and the use of the different parts. 
These were in part sanitary regulations but more to insure 
the priests their living. 

"The priests, the Levites and all the tribe of Levi shall have 
no part nor inheritance therein with Israel. They shall eat 
the offerings of the Lord made by fire and his inheritance." 6 

By far the greater space in the law is occupied with regu- 
lations relating to religion and religious ceremonies, and great 
care is taken to insure the maintenance and influence of the 
priesthood. All the books, especially that of Leviticus, con- 
tain very numerous rules relating to burnt offerings, meat 
offerings, peace offerings, sin offerings, trespass offerings, 
first fruits and other offerings from which the priests were 
supported. The priestly dress was regulated. The Levites 
were assigned cities (villages) with suburbs for their cattle, 
among which were six cities of refuge for criminals, into 
which the avenger of blood might not pursue one guilty of 
homicide, unless committed with premediation. The priest- 
hood was the instrumentality mainly relied on by Moses for 
the maintenance of his system, which in this respect strongly 
resembled the Egyptian. The observance of his laws would 
keep the priests in close contact with all the people substan- 
tially all the time, and obedience to aH*these minute regula- 
tions was enjoined as a religious duty. 

Among the most remarkable provisions in the laws of 
* Deut. xviii. 9. 



r5o EVOLUTION OF GOVERNMENTS AND LAWS 

Moses are those imposing restrictions on the rulers, and pro- 
viding for the promulgation and perpetuation of a code of 
written laws by which the rights of all were to be measured. 
The people were permitted to have kings, like as other na- 
tions, but with limitations on their powers. 

"But he shall not multiply horses to himself nor cause the 
people to return to Egypt to the end that he should multiply 
horses, forasmuch as the Lord hath said unto you, Ye shall 
henceforth return no more that way. Neither shall he multi- 
ply wives to himself that his heart turn not away, neither shall 
he greatly multiply silver and gold. And it shall be when he 
sitteth upon the throne of his kingdom, that he shall write him 
a copy of this law in a book, out of that which is before the 
priests, the Levites. And it shall be with him, and he shall 
read therein all the days of his life." 7 

"Judges and officers shalt thou make thee in all thy gates, 
which the Lord thy God giveth thee throughout thy tribes, 
and they shall judge the people with just judgment. Thou 
shalt not wrest judgment, thou shalt not respect persons, 
neither take a gift, for a gift doth blind the eyes of the wise 
and pervert the words of the righteous." 8 

Appeals from inferior to superior courts were provided for. 

"If there arise a matter too hard for thee in judgment, be- 
tween blood and blood, between plea and plea and between 
stroke and stroke, being matter of controversy within thy 
gates, then shalt thou arise and get thee up into the place 
which the Lord thy God shall choose. And thou shalt come 
unto the priests, the Levites, and unto the judge that shall be 
in those days and inquire, and they shall shew thee the sen- 
tence of judgment. And thou shalt do according to the 
sentence which they of that place which the Lord shall choose 
shall shew thee." 9 In the determination of criminal causes 
the rule concerning the amount of evidence required was, 
"One witness shall not rise up against a man for any iniquity 
or for any sin that he sinneth; at the mouth of two wit- 

T Deut. xvii. 16 and 19. • Deut. xvii. 8-9-10. 

8 Deut. xxi. 18-19. 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 151 

nesses or at the mouth of three witnesses shall the matter be 
established." 10 

Although the date of Moses' death is assigned to about the 
year 1450 B.C. and although the little nation for which he 
framed his laws was often at the mercy of its foes, in cap- 
tivity and finally scattered over the face of the earth as out- 
casts, his laws are to be found at this day in the households 
of millions of alien people in apparently complete form. This 
seems in some measure due to the provisions made by him 
for their preservation, but more to their religious sanction 
and the promulgation of the laws as the word of the God 
who watched over the Israelites as his chosen people and yet 
more to the spread of Christianity. The people were com- 
manded by Moses after they should pass over Jordan to set 
up great stones and plaster them and " write upon the stones 
all the words of this law very plainly." Blessings were called 
down on all who obeyed and curses on those who disobeyed. 
''And Moses wrote this law and delivered it unto the priests, 
the sons of Levi, which bore the ark of the covenant of the 
Lord, and unto all the elders of Israel and Moses commanded 
them saying, At the end of every seven years in the solemnity 
of the year of release in the feast of the tabernacle, when all 
Israel is come to appear before the Lord thy God in the place 
which he shall choose, thou shalt read this law before all 
Israel in their hearing." 11 

In the early days authority was exercised by the priests, and 
the general in time of war, but there was no king. 

"In those days there was no king in Israel, every man did 
that which was right in his own eyes." 12 

(B.C. 1400.) Afterward when Samuel was chief priest the 
people wanted a king. 

"Then all the elders of Israel gathered themselves together 
and came to Samuel unto Ramah, and said unto him, Be- 
hold thou art old and thy sons walk not in thy ways, now 
make us a king to judge us like all the nations. But the thing 

"Deut. xix. 15. "Judges xxi. 25. 

u Deut. xxxi. 9-10-11. 



152 EVOLUTION OF GOVERNMENTS AND LAWS 

displeased Samuel." He told them the evil consequences of 
having a king but they insisted. 13 

Saul was then made king. "And all the people shouted and 
said God save the king." Saul's authority was not fully rec- 
ognized however, and it was not till David was anointed that 
the kingly authority was established. Under his son Solomon 
the nation attained its maximum of wealth and power, which, 
as compared with that of either Egypt, Babylon, Assyria or 
Persia at its best, was not great. Though the written law of 
Moses seems to have been preserved intact, it does not ap- 
pear to have ever been very rigidly observed, nor to have 
been eminently successful as a religious establishment. Even 
Solomon, the model of all Hebrew Kings, violated the law by 
greatly multiplying his riches, and by taking to himself a 
vast number of wives (700), and concubines (300). In the 
accumulation of his harem he did not confine himself to selec- 
tions from the twelve tribes, but gathered from among the 
heathens, and as a result became tolerant of all the gods and 
erected places for the worship of other Gods besides Jehovah. 
Throughout much of the Old Testament there is constant 
recognition of the existence of Baal and numerous other gods, 
but Jehovah was the special god of Israel, from whom alone 
they might hope for help. The Bible records many times 
when the people generally abandoned the worship of God and 
adopted that of the gods of other people. The lesson con- 
stantly taught is that this was always followed by disaster, 
and that prosperity only came through strict adherence to the 
national worship. The history of the Israelites "from the 
time of Moses to the days of Christ, is an alternation of peace 
and war, adherence to the Mosaic law and abandonment of 
it, success and adversity, independence and subjection to for- 
eign power, corresponding in all material respects to that of 
surrounding nations. In morals they do not seem to have 
been materially above or below the general average hi their 
neighbors. In power and material development they were 
quite insignificant as compared with the Chaldeans, Babylon- 

13 1 Samuel viii. 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 153 

ians, Assyrians, Persians or Egyptians. Jerusalem at its 
best was but a village as compared with Babylon or Nineveh. 
Yet the influence of this small nation on succeeding genera- 
tions has vastly exceeded that of all the others combined. 
This influence is due, first to the preservation of the Mosaic 
law and, second but far more, to the Christian teachings of 
the new law of love and mutual help. 

We regard the present as an age of invention in Europe and 
America. It is not the first however. While we cannot defi- 
nitely fix time or place nor speak on the subject with absolute 
certainty, all we do know indicates that there was, before the 
days of Moses, a period of great mental activity and invention. 
The foundations of modern achievements seem to have been 
laid somewhere in or near the regions treated of in this 
chapter. The art of smelting iron, copper and many other 
metals was carried to an advanced state of perfection. Archi- 
tecture produced immense structures in which the beautiful 
sought expression in accordance with the taste of the times. 
The art of weaving fabrics was developed. Hydraulic en- 
gineering achieved triumphs little if any short of those boasted 
by modern engineers, and the rich country of the Tigris and 
Euphrates, which now lies desolate from lack of the ancient 
system by which the waters of the rivers were utilized, was 
then a vast garden, rivaling if not leading in productiveness 
the most favored portions of the globe in any age. But more 
valuable than all these was the invention of letters, since 
changed in form and number by different people, yet afford- 
ing the foundation of all written language in the western 
world. Of all the literary people the Chinese alone can claim 
the invention of another separate and complete system of 
written characters. Whether any of these inventions were 
made under the despotic governments of which history in- 
forms us cannot be told. Letters do not record the time, 
place or manner of their own creation. 

It seems strange that so little definite history or description 
cf the government of the Phoenicians can be given. They 
were renowned for manufactures and commerce. Their ships 
went to all ports of the Mediterranean Sea, but their colonies 



154 EVOLUTION OF GOVERNMENTS AND LAWS 

were mostly on the African side. The accounts of Carthage 
received from Roman sources are doubtless much colored by 
their hostility. 

The dynasty established as a sequence of Alexander's con- 
quest did not long retain marked Greek characteristics, but 
soon degenerated and became in fact a typical oriental despot- 
ism. The Greeks adopted Persian customs rather than im- 
posed their own. There were Greek cities along the coasts 
where Greek civilization prevailed for many centuries. Fol- 
lowing the downfall of Macedonian supremacy came the Ro- 
man conquest of the country west of the Euphrates. Toward 
the east the Persians with varying fortunes and under nu- 
merous dynasties have during most of the time maintained 
their supremacy. But whether the ruler was Persian, Mede, 
Bactrian, Turk, Mogul or Moslem, he has always been a 
despot, sometimes a wellmeaning and sometimes an able one, 
but usually a cruel, idle voluptuary. The advent of Christ 
had little effect on the political conditions of the country of 
his birth. Not till the Crusades was an attempt made to as- 
sert temporal authority there in his name. The influence of 
his teachings, though not wholly wasted in Asia, was far 
less potent than that of Mohammed, whose system was bet- 
ter suited to oriental tastes and character. 

The difficulty with all their systems was that no effectual 
check was provided against the exercise of arbitrary power. 
Those who are inclined to clamor for speedy justice may read 
of striking illustrations of it in the book of Daniel, where the 
story is told of the retributive justice meted out to Daniel's 
accusers, who were thrown into the lion's den and torn to 
pieces by the king's command, or in the book of Esther in 
which is recorded the hanging of Haman on the gallows he 
erected for Mordecai, and the license given to and used by 
the Jews by command of Ahasuerus to slaughter their ene- 
mies. The king and his satraps were really restrained only 
by their own feelings or interests and constantly exercised 
arbitrarily the power to put to death, often in cruel ways, and 
to seize the property of their subjects. 

The theory of the Persian government remained despotic 



CHALDEA, BABYLONIA, JUDEA AND PERSIA 155 

till very recent times, but modern influences have been felt in 
the land of the ancient despotism. On August 5, 1906 
Muzaffar-ud-Din, Shah, issued a rescript undertaking to form 
a national council — Majlis — representing the whole people. 
The Majlis was elected and opened by the shah in person on 
October 7, 1906. Muzaffer died in January 1907 and his son 
Mohammed Ali Mirza on his accession to the throne pledged 
himself to support the constitution. A revolution occasioned 
by a clash between the shah and the Majlis resulted in the 
deposition of Ali and the choice of his young son Ahmad 
Mirza. On November 15, 1909 a newly elected Majlis was 
opened by the shah. 

The Majlis is composed of representatives of the dominant 
classes and numbers 162 members (sixty from Teheren and 
102 from the provinces). Electors must be males, Persian 
subjects not less than twenty-five years old and of good 
repute. The executive government is carried on by a cabinet 
of eight ministers. 



CHAPTER VIII 



Arabia 



Were it not for the marvelous career and lasting influence 
on a large portion of the human race of one man as a relig- 
ious teacher and law giver, Arabia would be given but small 
space in this work. The people were allied on one side with 
the neighboring Asiatic population and classed as of Semitic 
stock, and on the other were intermixed with African blood 
of the Egyptian and Abyssinian stocks. Nevertheless the 
Arab is of a type quite as well marked as any of his neighbors 
and has been so for untold centuries. Modes of life and 
social systems appear to have been moulded by natural con- 
ditions. In Yemen, which has ever been rich and fruitful, 
the people have dwelt in settled communities, cultivated the 
soil and maintained a strong monarchical government, which 
is said to have lasted 2500 years before Mohammed, and to 
have extended its power over most of the south half of the 
peninsula. In the interior and desert portions, where settled 
agriculture is impossible, but precarious pasturage affords 
sustenance for flocks and herds, the wandering tent dwelling 
Bedouins moved from place to place with their live stock, 
recognizing no settled government beyond their tribal leaders. 
Though brought in contact with the ancient civilizations of 
Egypt, Babylonia and India through its traders, so far as 
known Arabia developed and preserved its own peculiar types. 
Our common system of expressing numbers by figures is per- 
haps the only Arabic invention with which we are familiar, 
but it may well be that this is not all for which we are in- 
debted to them, so meager and imperfect are the records of 
past events. 

Mohammed grew up under a tribal system which recog- 
nized no superior authority. Mecca, though a city of no 
great size, was occupied by clans having no common head. 

156 



, 



ARABIA 157 



he Koraish, by which general term the clans in and about 
Mecca were known, were traders whose caravans brought 
goods from Syria and Persia, which were sold at the fairs 
in Mecca. Knowledge of reading and writing was general 
among them. 

Neither the Abyssinian Christians nor the Persian fire 
worshipers had been able to subjugate Mecca. Mohammed's 
parents died during his early youth and he grew up in ex- 
treme poverty first in his grandfather's, and then his uncle's, 
family. At twenty-five he entered the service of Khadija, a 
wealthy widow for whom he traveled to Palestine and Syria. 
Afterward he married her. He became familiar with the 
Hebrew scriptures and traditions and with the tenets of the 
Christians. To the many forms of idolatry which he found 
prevailing, not only among the followers of ancient Arabic 
faiths, but also among the Christians of his day, he con- 
ceived a most intense aversion. He was a profound believer 
in the unity of God. Mohammed laid no claim to divinity, 
not even to direct personal communion with God, but to hav- 
ing received the words of the Koran through the angel 
Gabriel. He posed merely as the apostle of God. He did 
not profess to proclaim a new religion, but merely to restore 
in its purity the ancient Jewish monotheism. He gave the 
great characters of the Bible recognition as prophets, and 
while he denied the divinity of Christ, his authority as a 
prophet and teacher is maintained. The Koran, though re- 
garded by Mohammedans as a wonderful literary production, 
contains little to admire, when translated into English. Its 
repetition of the Bible stories, with variations of form, are 
tedious and uninstructive. The strength of his revelations 
seems to lie in the vigorous proclamation of the unity and 
power of God, and in the rewards offered to the true believers 
of a paradise suited to the sensual desires of the people to 
whom he spoke, and the hot torments of hell denounced as a 
punishment to those who refused to accept the Koran. The 
God he proclaimed was an intensely personal one, who took 
a keen and active interest in human affairs and rewarded and 
punished in ample measure. His doctrines tended directly to 



158 EVOLUTION OF GOVERNMENTS AND LAWS 

the establishment of civil power under religious sanction, and 
Mohammed stands out in bold relief as the founder of ji 
religious sect, who was at the same time the founder of an 
empire qyer subjects unaccustomed to submit to despotic rule. 
Although the Koran is the law for all Mohammedan countries 
and is accepted as based on divine authority, it is exceedingly 
meager in its rules of conduct, and is adapted to such condi- 
tions as the prophet was familiar with. The moral tone is 
superior to most of the Old Testament, but quite inferior to 
that of the New. As in the laws of Moses, the first and chief 
concern was to provide for the support and maintenance of 
the religion. From first to last the worship of the true and 
living God is enjoined, rewards are promised for the true 
believers and punishments denounced for the infidels. 

The religious teachings and the code of laws put forth by 
Mohammed can best be studied in the Koran, in which is 
written the revelations which Mohammed claimed were sent 
down to him. The following extracts from the text will give 
a clearer idea of Mohammed's system than any summary of 
or comment on the Koran. The great influence Mohammed 
has exerted over a large part of the earth through so many 
centuries, in religion and as a law-giver, render his works of 
peculiar interest. The fanatical spirit which animated his 
followers is expressed in the following text: "When ye en- 
counter the unbelievers strike off their heads until ye have 
made a great slaughter among them, and bind them in bonds ; 
and either give them a free dismission afterwards or exact a 
ransom until the war shall have laid down its arms." 1 "And 
as to those who fight in defense of God's true religion, God 
will not suffer their works to perish; he will guide them and 
dispose their hearts aright; and he will lead them into Para- 
dise of which he hath told them, God hath preferred those 
who fight for the faith above those who are still by adding 
unto them a great reward." 2 

"The description of Paradise which is promised unto the 
pious, therein are rivers of incorruptible waters and rivers of 

J Ch. 47. Sales' Koran. 
2 Id. Ch. 4, P- 65. 



ARABIA 159 

milk the taste whereof changeth not, and rivers of wine, 
pleasant unto those who drink, and rivers of clarified honey, 
and therein shall they have plenty of all kinds of fruits, and 
pardon from their Lord. Shall the men for whom these 
things are prepared be as he who must dwell for ever in 
hell fire and will have the boiling water given them to drink 
which shall burst their bowels." "Verily this present life is 
only a play and a vain amusement ; but if ye believe and fear 
God He will give you your rewards. He doth not require of 
you your whole substance, if He should require the whole of 
you and earnestly press you, ye would become niggardly and 
it would raise your hatred against His apostles. Behold ye 
are those who are invited to expend part of your substance 
for the support of God's true religion; and there are some 
of you who are niggardly. But whosoever shall be niggardly 
shall be niggardly toward his own soul." 3 

"These are they who shall approach near unto God, they 
shall dwell in gardens of delight. . . . Reposing on couches 
adorned with gold and precious stones, sitting opposite to one 
another thereon. Youths which shall continue in their bloom 
forever shall go round about to attend them with goblets and 
beakers and a cup of flowing wine ; their heads shall not ache 
by drinking the same neither shall their reason be disturbed; 
and with fruits of the sorts which they shall choose and the 
flesh of herds of the kinds which they shall desire, and there 
shall accompany them fair damsels having large black eyes 
resembling pearls hidden in their shells, as a reward for that 
which they shall have wrought. They shall not hear therein 
any vain discourse or any charge of sin but the only saluta- 
tion Peace, Peace. And the companions of the right hand, 
. . . shall have their abode among the lote trees free from 
thorns and trees of mauz loaded regularly with their produce 
from top to bottom, under an extended shade near a flowing 
water and amidst fruits in abundance which shall not fail nor 
shall be forbidden to be gathered; and they shall repose 
themselves on lofty beds. Verily we have created the damsels 

z Id. Ch. 4. 



160 EVOLUTION OF GOVERNMENTS AND LAWS 

of paradise by a peculiar creation, and we have made them 
virgins, beloved by their husbands of equal age with them, 
for the delight of the companions of the right hand." 4 

"And they who believe not shall have garments of fire 
fitted unto them ; boiling water shall be poured on their heads, 
their bowels shall be dissolved thereby also their skins shall 
be beaten with maces of iron." 5 

The duty of giving alms is frequently enjoined, and this 
generally meant making contributions for the support of the 
faith. Mohammed himself applied all his receipts to the use 
of his followers, with no desire to amass wealth, and alms 
with him really meant charitable contributions, except when 
used to propagate the word with the sword. The doctrines 
he taught were not above the comprehension of his followers, 
and the rewards promised were of the sort most pleasing to 
them. The punishments denounced against unbelievers were 
well calculated to terrify, and to these persuasions he added 
a vigorous policy for organization and extension of his tem- 
poral power. The command to pray was peremptory. 

"Regularly perform thy prayer at the declension of the 
sun, at the first darkness of the night and the prayer of day 
break, for the prayer of day break is borne witness unto by 
the angels. And watch some part of the night in the same 
exercise as a work of super-errogation for thee ; peradventure 
thy Lord will raise thee to an honorable station, and say O! 
Lord cause me to enter with a favorable entry, and cause me 
to come forth with a favorable coming forth, and grant me 
from thee an assisting power. And say truth is come and 
falsehood is vanished; for falsehood is of short continuance." 6 

The domestic customs prevailing in Arabia in the time of 
Mohammed were substantially like those of ancient Judea, 
Egypt and Persia and his teachings did not call for radical 
changes. "And give the orphans when they come of age 
their substance, and render them not in exchange bad for 
good, and devour not their substance by adding it to your 
substance, for this is a great sin. And if ye fear that ye 

'Id. Ch. 56. "Id. Ch. 22. "Id. Ch. 17. 



ARABIA 161 

shall not act with equity towards orphans of the female sex, 
take in marriage of such other women as please you, two or 
three or four and not more. But if ye fear that ye cannot 
act equitably toward so many, marry one only or the slaves 
which ye shall have acquired. This will be easier that ye 
swerve not from righteousness. And give women their 
dowry freely; but if they voluntarily remit any part of it 
unto you, enjoy it with satisfaction and advantage. And 
give not unto those who are weak of understanding the sub- 
stance which God hath appointed you to preserve for them, 
but maintain them thereout and clothe them and speak kindly 
unto them, and examine the orphans until they attain the age 
of marriage, but, if ye perceive they are able to manage 
their affairs well, deliver their substance unto them ; and waste 
it not extravagantly or hastily, because they grow up. Let 
him that is rich abstain entirely from the orphans estate ; and 
let him who is poor take thereof according to that which shall 
be reasonable. And when ye deliver their substance unto 
them call witnesses in their presence. . . . God hath thus 
commanded you concerning your children. A male shall have 
as much as the share of two females, but if they be females 
only and above two in number, they shall have two third parts 
of what the deceased shall leave, and if there be but one 
she shall have the half, and the parents of the deceased shall 
have each of them a sixth part of what he shall leave if he 
have a child, but it he have no child and his parents be his 
heirs then his mother shall have the third part. And if he 
have brethren then his mother shall have a sixth part after 
the legacies which he shall bequeath and his debts be paid. 
. . . Moreover ye may claim half of what your wives shall 
leave if they have no issue, but if they have issue, then ye 
shall have the fourth part of what they shall leave after the 
legacies which they shall bequeath and the debts be paid. 
They also shall have the fourth part of what ye shall leave 
in case ye have no issue, but if ye have issue, then they shall 
have the eighth part of what ye shall leave after the legacies 
which ye shall leave and the debts be paid. And if a man's 
or woman's substance be inherited by distant relation, and he 



162 EVOLUTION OF GOVERNMENTS AND LAWS 

or she have a brother or sister each of them too shall have a 
sixth part of the estate. ... If any of your women be guilty 
of whoredom produce four witnesses from among you 
against them, and if they bear witness against them imprison 
them in separate apartments until death release them or God 
affordeth them a way to escape. And if two of you commit 
the like wickedness punish them both, but if they repent and 
amend, let them both alone ; for God is easy to be reconciled, 
and merciful. Verily repentance will be accepted with God, 
from those who do evil ignorantly and then repent speedily, 
unto them will God be turned for God is knowing and wise. 
But no repentance shall be accepted from those who do evil 
until the time when death presenteth itself unto one of them 
and he saith verily, I repent now; . . . O true believer it is 
not lawful for you to be heirs of women against their will, 
nor to hinder them from marrying others that ye may take 
away part of what ye have given them in dowry ; unless they 
have been guilty of a manifest crime; but converse kindly 
with them. ... If ye be desirous to exchange a wife for 
another wife and ye have already given one of them a talent, 
take not away anything therefrom. . . . Marry not women 
whom your fathers have had to wife; for this is uncleanness 
and an abomination and an evil way. Ye are forbidden to 
marry your mothers and your daughters and your sisters and 
your aunts, both on the fathers and on the mothers side, and 
your brothers daughters and your sisters daughters, and your 
mothers who have given you suck and your foster sisters 
and your wives mothers and your daughters in law which 
are under your tuition, born of your wives, . . . and the 
wives of your sons who proceed from your loins and ye are 
also forbidden to take to wife two sisters. Ye are also for- 
bidden to take to wife free women who are married, except 
those women whom your right hand shall possess as slaves. 
. . . Whoso among you hath not means sufficient that he 
may marry free women who are believers, let him marry with 
such of your maid servants whom your right hands possess 
as are true believers. . . . Serve God and associate no crea- 
ture with Him, and show kindness unto parents, and relatives 



ARABIA 163 

and orphans and the poor, and your neighbor who is kin to 
you, and also your neighbor who is a stranger, and your 
familiar companion and the traveller and the captives whom 
your right hand shall possess." 7 

Husbands were allowed to divorce their wives at will, the 
only restrictions being as to the time of putting them away, 
which could not be during pregnancy. "And speak unto the 
believing women that they restrain their eyes, and preserve 
their modesty and discover not their ornaments, except what 
necessarily appeareth thereof, and let them throw their veils 
over their bosoms and not show their ornaments unless to 
their husbands or their fathers or their husbands fathers or 
their sons or their husbands sons or their brothers or their 
brothers sons or their sisters sons or their women or the 
captives which their right hands possess, or unto such men 
as attend them and have no need of women or unto children 
who distinguish not the nakedness of women." 

"O true believers enter not any houses besides your own 
houses until ye have asked leave and have saluted the family 
thereof . . . and if ye find no person in the houses, yet do 
not enter them until leave be granted you, and if it be said 
unto you return back, do ye return back." 8 

The criminal code is not voluminous. The Mosaic lex 
talionis is repeated with leave to remit on payments of alms. 
"It is not lawful for a believer to kill a believer unless it hap- 
pen by mistake, and whoso killeth a believer by mistake the 
penalty shall be the freeing of a believer from slavery and a 
fine to be paid to the family of the deceased unless they remit 
it as alms; and if the slain person be of a people at enmity 
with you and be a true believer, the penalty shall be the free- 
ing of a believer, and if he be of a people in confederacy 
with you, a fine to be paid to his family, and the freeing of a 
believer, and he who findeth not wherewith to do this shall 
fast two months consecutively, as a penance enjoined from 
God. . . . But whoso killeth a believer designedly his re- 

7 Id. Ch. 4, entitled Women. 

8 Id. Ch. 24. p. 265. 



164 EVOLUTION OF GOVERNMENTS AND LAWS 

ward shall be hell, he shall remain there forever." 9 "If a 
man or woman steal cut off his hand." 

"The whore and the whoremonger shall ye scourge with 
an hundred stripes. And let no compassion toward them 
prevent you from executing the judgment of God. . . . The 
whoremonger shall not marry any other than a harlot or an 
idolatress. And a harlot shall no man take in marriage ex- 
cept a whoremonger or an idolater; and this kind of mar- 
riage is forbidden the true believers. But as to those who 
accuse women of reputation of whoredom and produce not 
four witnesses of the fact, scourge them with fourscore 
stripes and receive not their testimony forever, for such are 
infamous prevaricators, excepting those who shall afterwards 
repent and amend, for unto such will God be gracious and 
merciful. They who shall accuse their wives of adultery and 
shall have no witnesses thereof besides themselves; the testi- 
mony which shall be required of one of them shall be that 
he swear four times by God that he speaketh the truth; and 
the fifth time that he imprecate the curse of God on him if 
he be a liar. And it shall avert the punishment from the 
wife, if she swear four times by God that he is a liar, and if 
the fifth time she imprecate the wrath of God on her if he 
speaketh the truth. 10 

"Kill not your children for fear of being brought to want, 
we will provide for them and for you ; verily the killing them 
is a great sin. Draw not near unto fornication for it is 
wickedness and an evil way. Neither slay the soul which God 
hath forbidden you to slay unless for a just cause" (apostasy, 
adultery or murder) "and whosoever shall be slain unjustly 
we have given his heir power to demand satisfaction, but let 
him not exceed the bounds of moderation in putting to death 
the murderer in too cruel a manner, or by revenging his 
friend's blood on any other than the person who killed him, 
since he is assisted by this law, and meddle not with the sub- 
stance of the orphan, unless it be to improve it until he 
attain his age of strength, and perform your covenant, for 

"Id. Ch. 5, p. 78. 

10 Id. Ch. 24, entitled Light. 



ARABIA 165 

the performance of your covenant shall be inquired into here- 
after. And give full measure where you measure aught, and 
weigh with a just balance. This will be better and more 
easy for determining every man's due. . . . Walk not proudly 
in the land for thou canst not cleave the earth neither shalt 
thou equal the mountains in stature. All this is evil and 
abominable in the sight of thy Lord." 11 

"O true believers let not men laugh other men to scorn who 
peradventure may be better than themselves; neither let wo- 
men laugh other women to scorn who possibly may be better 
than themselves. Neither defame one another, nor call one 
another by opprobrious appellations. An ill name is to be 
charged with wickedness after having embraced the faith, and 
whoso repenteth not they will be the unjust doers. O true 
believers, carefully avoid entertaining a suspicion of another, 
for some suspicions are a crime. Inquire not too curiously 
into another man's failings, neither let the one of you speak 
ill of another in his absence." 12 

"Whatever things are given you they are the provisions of 
the present life; but the reward which is with God is better 
and more durable, for those who believe and put their trust 
in their Lord and who avoid heinous and filthy crimes and 
when they are angry forgive, and who hearken unto their 
Lord and are constant at prayer, and whose affairs are di- 
rected by consultation among themselves, and who give alms 
out of what we have bestowed on them, and who when an 
injury is done them, avenge themselves (and the retaliation 
of evil ought to be an evil proportionate thereto), but he who 
forgiveth and is reconciled unto his enemy shall receive his 
reward from God, for he loveth not the unjust doers." 13 

"Thy Lord hath commanded that ye worship none besides 
him, and that ye show kindness unto your parents, whether 
the one of them or both of them attain to old age with thee. 
Wherefore say not unto them, Fie on you; neither reproach 
them, but speak respectfully unto them, and submit to behave 

11 Id. Ch. 17, entitled The Night Journey. 

12 Id. Ch. 49, entitled The Inner Apartments. 

13 Id. Ch. 42, entitled Consultation. 



166 EVOLUTION OF GOVERNMENTS AND LAWS 

humbly towards them out of tender affection and say O 
Lord have mercy on them both as they nursed me when I 
was little. . . . And give unto him who is of kin to you 
his due and also unto the poor and the traveller, and waste 
not your substance profusely for the profuse are brethren of 
the devils." 14 

"God will not punish you for an inconsiderate word in 
your oaths, but he will punish you for what ye solemnly 
swear with deliberation. And the expiation of such an oath 
shall be the feeding of ten poor men with such moderate food 
as ye feed your own families withal, or to clothe them, or to 
free the neck of a true believer from captivity, but he who 
shall not find wherewith to perform one of these three things 
shall fast three days. This is the expiation of your oaths 
when ye swear inadvertently. Therefore keep your oaths. 
Thus God declareth unto you his signs that ye may give 
thanks. O true believers surely wine and lots and images 
and divining arrows are an abomination of the work of 
Satan; therefore avoid them that ye may prosper. Satan 
seeketh to sow dissension and hatred among you by means 
of wine and lots and to divert you from remembering God 
and prayer, will ye not therefore abstain from them?" 15 

"Say I find not in that which hath been revealed unto me 
anything forbidden unto the eater that he eat it not, except 
it be that which dieth of itself or blood poured forth, or 
swine flesh for this is an abomination, or that which is pro- 
fane, having been slain in the name of some other than of 
God. But whoso shall be compelled by necessity to eat of 
these things, not lusting nor wilfully transgressing, verily the 
Lord will be gracious unto him and merciful." 16 

"They who devour usury shall not arise from the dead but 
as he ariseth whom Satan hath infected by a touch, this shall 
happen to them because they say, Truly selling is but as usury 
and yet God hath permitted selling and forbidden usury. He 
therefore who, when there cometh unto him an admonition 
from his Lord, abstaineth from usury for the future, shall 

14 Id. Ch. 17. ™Id. Ch. s. ie Id. Ch. 6. 



ARABIA 167 

have what is past forgiven him, and his affair belongeth unto 
God. But whoever returneth to usury, they shall be the com- 
panions of hell fire, they shall continue therein forever." 17 

"O true believers, when you bind yourselves one to the 
other in a debt for a certain time, write it down, and let a 
writer write between you according to justice, and let not 
the writer refuse writing, according to what God hath taught 
him, but let him write and let him who oweth the debt dictate, 
and let him fear God his Lord and not diminish aught thereof. 
But if he who oweth the debt be foolish or weak or be not 
able to dictate himself, let his agent dictate according to equity 
and call to witness two witnesses of your neighboring men; 
but if there be not two men, let there be a man and two 
women of those whom ye shall choose for witnesses, if one 
of these women should mistake the other will cause her to 
recollect, and the witnesses shall not refuse whensoever they 
shall be called. And disdain not to write it down, be it a 
large debt or be it a small one, until its time of payment; 
this will be more just in the sight of God, and more right for 
bearing witness and more easy that ye may not doubt. But 
if it be a present bargain which ye transact between your- 
selves, it shall be in you if ye write it not down. And take 
witnesses when ye sell one to the other, and let no harm 
be done to the writer nor to the witnesses." 18 

The true believers were commanded to wash before prayers 
and if where no water could be had, to rub faces and hands 
with fine clean sand. 

"O true believers observe justice when ye bear witness be- 
fore God, although it be against yourselves or your parents or 
relations, whether the party be rich or whether he be poor, 
for God is more worthy than them both ; therefore follow not 
your own lust in bearing testimony so that ye swerve from 
justice. And whether ye wrest your evidence or decline giv- 
ing it God is well acquainted with that which ye do." 19 

"God hath appointed the Caaba the holy house an establish- 
ment for mankind; and hath ordained the sacred month and 

17 Id. Ch. 2. m Id. Ch. 2. 19 Id. Ch. 4. 



t68 EVOLUTION OF GOVERNMENTS AND LAWS 

the offering and the ornaments hung thereon." 20 "But they 
who shall disbelieve and obstruct the way of God and hinder 
men from visiting the holy temple of Mecca which we have 
appointed for a place of worship unto all men; the inhabi- 
tant thereof and the stranger have an equal right to visit it; 
and whosoever shall seek impiously to profane it we will 
cause him to taste a grievous torment. Call to mind when 
we gave the site of the Caaba for an abode unto Abraham, 
saying, Do not associate anything with me and cleanse my 
house from those who compass it and who stand up and who 
bow down to worship. And proclaim unto the people a 
solemn pilgrimage, let them come unto thee on foot and on 
every lean camel arriving from every distant road, that they 
may be witnesses of the advantages that accrue to them from 
visiting the holy place, and may commemorate the name of 
God on the appointed days in gratitude for the brute cattle 
he hath bestowed on them." 21 

The foregoing passages cover substantially all of Moham- 
med's law-giving. The substance of some of these commands 
is repeated in other places, but the balance of the Koran is 
rilled with sermons and narratives taken from the Bible, and 
frequent and oft repeated denunciations of the infidels. This 
meager code did not suffice for the vast empire built up by his 
successors. To supplement it recourse was had to decisions 
made by Mohammed, to analogies, traditions and customs 
constituting the Sunna. Numberless commentators elucidated 
the text of the Koran, and the decisions of Mohammed were 
collected and published. Where all these failed to furnish a 
rule the early Caliphs exercised their own judgment, and, as 
must always happen everywhere in the absence of an estab- 
lished rule or precedent, the opinion of the judge in the 
particular case necessarily stands for law. Throughout all 
Mohammedan countries, however, the Koran was ever looked 
to for the spirit of the whole law, and its commands admitted 
of no change or modification by any authority whatever. A 
lengthy treatise on Mohammedan jurisprudence, that of Ibn 

20 Id. Ch. 5. 

n Id. Ch. 23, entitled The True Believer. 



ARABIA 169 

Hanbal, has the following principal heads. Of Purification 
(ablution, purification of women, circumcision, etc.). Of 
Prayer, of Funerals, of Tithe and Almsgiving, of the legal 
Fasts, of the Pilgrimage to Mecca, of Commercial and other 
transactions, of Inheritance, of marriage and divorce, of the 
Faith, of Crimes and Misdemeanors, of Justice, of the Ima- 
mate or spiritual power, and of the Caliphate or temporal 
power. 

An American lawyer would be more likely to think he had 
found a religious commentary than a law book, but with 
Mohammedans, law and gospel were one. 

Mohammed's power was derived from the belief in his 
divine commission. The scope and limitations of his authority 
were fixed by revelations of the Koran, from time to time, 
as the exigencies of state required. In his life he extended 
his power over Arabia and sought submission from neighbor- 
ing people, but died when preparing to invade Syria. His 
successors rapidly extended their power over Egypt, Syria 
and thence over the north of Africa and all Asia Minor. The 
first four Caliphs were chosen by the community at Medina. 
The revenues of the state consisted of the tithe for the poor, 
which every Moslem was required to pay, a fifth of the spoils 
of war, — the rest going to the warriors, — the poll tax and 
land tax on infidels. The Caliph administered the revenues 
according to his pleasure. The poll tax ranged from about 
two dollars on the poor to about eight dollars on the rich. The 
land tax was in the nature of a rent according to the character 
of the holding. In the early days pensions were paid to the 
faithful out of the public revenues. With the growth of the 
empire the necessities of administration caused its division in- 
to provinces, first ten, and on the removal of the capital from 
Damascus to Bagdad, twelve. Each province was governed by 
a prefect, who stood in the place of the Caliph. The central 
administration developed into various departments, each un- 
der the supervision of a chief. There was a ministry of 
Finance, Bureau of State property, Exchequer Office, Min- 
istry of War, Court of Appeal, Bureau of freedmen and 
slaves of the Caliphs, Office of expenditure, Office of Posts, 



i;o EVOLUTION OF GOVERNMENTS AND LAWS 

Office of Correspondence, Office of the Imperial Seal and 
registration. All power was centered in the Caliph, who was 
the spiritual as well as the temporal head. The ministers of 
the various departments were responsible to him. So were 
the prefects who stood as his representatives in the provinces. 

Justice was administered by Cadis appointed by the Caliph, 
his Vizier or the prefect. To be eligible to this appointment 
one must be a free male Moslem, of suitable age, sound mind, 
good morals and learned in the law. The Cadis had general 
civil and criminal jurisdiction and of guardianships and es- 
tates, and over mosques, schools and public buildings. To as- 
sist him the Cadi had Notaries, Secretaries and Deputies. 
From the decision of the Cadi an appeal might be taken to 
the Court of Appeal, which was presided over by the Caliph in 
person till the time of Mohtadi, after which a special judge 
appointed for that purpose presided. In the provinces there, 
were Marshals who kept records of the birth and death of 
descendants of the family of the Prophet. The Imams of- 
ficiated at the Mosques. 

The practical application of the Koran in the decision of 
causes by the Cadis and the religious sentiment of the be- 
lievers combined in calling out innumerable commentaries, 
seeking to elucidate and make plain whatever was obscure. 
Judges with a fixed guide for their decisions were a marked 
improvement over despotism, notwithstanding the meager 
rules afforded by the Koran. Under the Caliphs a new and 
better civilization than any which had preceded it developed, 
and the seats of learning and progress in literature, art and 
science were within the Moslem world. As the lights grew 
dim in the crumbling empire of Rome and Constantinople 
they burned more brightly at Damascus and Bagdad, illumi- 
nating the followers of Islam from India to Andalusia. 
Though the teachings of Mohammed were not so pure and 
exalted as those of Christ, they were coupled with more prac- 
tical means for their observance, and on Asiatic and African 
soil they manifested superior adaptation. In Europe they 
never took firm root, save among the Moors in Spain and the 
Turks in the east. 



ARABIA- 171 

Though at this day it is estimated that near 175,000,000 
people are Mohammedans, the empire of the Caliphs is in 
scattered fragments. The Koran sanctions slavery and poly- 
gamy, and, while it forbids wine and gaming in this world, it 
promises a sensual idlers' heaven. Its ideals are neither pure 
nor exalted, and its standard of justice is partial and deficient. 
While apparently of great use in its time, like all other rigid 
systems enforced by a religious sanction, it perpetuates its 
errors and vices, and in the lapse of centuries these seem to 
overshadow the good and render the whole an obstacle to be 
removed to make way for something better. But so well is 
the faith with its rewards and punishment adapted to certain 
types of men, that neither Christianity nor Buddhism has suc- 
ceeded in transplanting it. 



CHAPTER IX 



India 



Within the geographical limits of what we call India there 
are, and in the earliest times of which we have any accounts 
were, so many people, differing in race, language and social 
condition from each other, that generalizations become ex- 
ceedingly difficult and a connected historical statement of the 
development of their civilization quite impossible. No single 
race has at any known date occupied the whole territory. No 
one language has been spoken by all the people. At this day 
the ethnologist finds there an ample field for the study of the 
diverse types of men. Connected histories by native writers 
are almost wholly wanting. The material from which the 
student must proceed to construct an account of the past is 
fragmentary. The earliest accounts come through the sacred 
writings of the Aryan invaders, who entered the country 
from the northwest. The date of their advent into the Pun- 
jab is variously estimated by scholars on data which leave a 
very wide margin for difference of inference, with no means 
of definitely settling the point. It seems safe to say that it 
was more than iooo B.C. and may have been thousands of 
years earlier. These invaders found the country already 
peopled by numerous tribes, some of whom used iron imple- 
ments and were considerably advanced above the savage state. 
Of the people occupying those parts of the country remote 
from the invaders we have no accounts reaching back to so 
early a time. 

From the Vedic hymns are gathered the leading facts re- 
lating to the movement of the Indian branch of the great 
Aryan family from the common home in the mountain region 
from which the Oxus and Jaxartes flowed. What causes have 
produced the Brahmin type in India and the Persian, Median 
and European in the west it is not our purpose to inquire, but 



INDIA 173 

it may be noticed that the race is generally the dominant one 
wherever found. The earliest songs disclose the clans in 
Cabul north of Khyber Pass, the later ones show them to have 
reached the Ganges. They were a very religious people and 
placed great reliance on the aid of their gods. The Rich- 
Veda shows the Aryans dwelling along the banks of the 
Indus, divided into tribes, sometimes warring with each other, 
sometimes united against the dark skinned aborigines. Each 
father of a family was also its priest. The chief acted as 
priest of the tribe, but at the great festivals chose some one 
specially learned in the rites to conduct the sacrifices. Chiefs 
were elected. Husband and wife together were rulers of the 
house, and the marriage relation was held sacred. Caste and 
the burning of widows were unknown. Before entering India 
through the Khyber Pass and while still in the mountainous 
region near Cabul, the Aryans had already discovered or 
learned many of the arts of civilization. They had black- 
smiths, coppersmiths , goldsmiths, carpenters and barbers. 
They fought in chariots and with horses, they reared cattle, 
tilled the soil, spun and wove. When and where the art of 
writing was learned by them is a point on which scholars differ 
widely. While it is agreed on all hands that the hymns of 
the Rig Veda are of very ancient composition, definite dates 
have not been fixed, and it is claimed that they were not re- 
duced to writing for many centuries after their original com- 
position. 

This strong, vigorous and highly religious race of people 
descended into the valley of the Indus, which they found al- 
ready occupied by inferior people. Most of the aboriginal 
tribes found by the Aryans were of a negroid or mongolian 
type, not more advanced in culture than the American In- 
dians at the time of the discovery of the western continent. 
There were others mentioned in Sanskrit literature as wealthy 
and possessed of castles and forts'. They adorned their dead 
with raiment and ornaments of bronze, copper and gold. 
There are ample evidences of the existence in early times of 
rude tribes, who used stone implements, but just at what stage 
of development all the native people had arrived at the time 



174 EVOLUTION OF GOVERNMENTS AND LAWS 

of the advent of the Aryans, it is impossible to state. That 
the invaders were superior as warriors, as well as in culture, 
is evident from the extension of their possessions, which 
spread from the valley of the Indus to that of the Ganges and 
ultimately extended over most of the peninsula. The con- 
quests of the Aryans however, were not merely the extension 
of military power and governmental control over the native 
population, but the encroachments of a superior race, which 
either drove out or subjugated the inferior. Race and re- 
ligious superiority were asserted rather than mere sovereignty, 
and the invaders came to make the conquered country their 
home. 

The non-Aryan races are said to belong to three principal 
stocks, the Tibeto-Burman, the Kolarian and Dravidian. The 
language of the Tibeto-Burman indicates Mongolian and 
Chinese origin, and it is inferred that they crossed into the 
country they now inhabit along the skirts of the Himalayas 
from Central Asia. The Kolarians are also supposed to have 
entered India from the north and are now found mainly in 
the north and along the northern edge of the southern table- 
land. At the present time they appear as scattered tribes, 
whose common origin is proved by similarity of language 
and appearance rather than any social connection or tradition 
of common origin. The Dravidians form a compact mass 
in southern India, and the dialects classed as Dravidian are 
spoken by nearly 50,000,000 people. Aside from these prin- 
cipal stocks, the presence of Africans and Arabs in India in 
very early times is well established, and their blood has been 
preserved and mixed with the other stocks to a considerable 
degree. At all periods in its history India seems to have at- 
tracted to it people from the north and west, not only for 
trade, but also for permanent settlement and conquest. 

Chaldeans, Assyrians and Egyptians as well as Chinese 
have known of and traded with the people of India from very 
early times, yet very little can be learned of the early condi- 
tions of the people from accounts derived through these 
sources. It is impossible to trace the governmental and 
social state of India through the historical period and ignore 



INDIA 175 

the rise and fall of religion. Nowhere else has the effect 
of religious teaching on social life been greater or more 
enduring. 

The proud Aryan invaders, whose deeds are related in the 
Vedic verses, asserted and maintained, not only their own race 
superiority over the people they subdued, but also the superi- 
ority of their gods over the weaker ones of the aborigines. 
In the early period of the Aryan invasion, when the art of 
writing was unknown, the battle hymns and sacrificial cere- 
monials were passed down by oral instruction from father to 
son. This led to the growth of a priestly order, specially 
versed in all that pertained to the sacred rituals. Great faith 
was put in the efficiency of battle hymns that had been chanted 
and prayers that had been offered before successful battles. 
By degrees the number of prayers and hymns increased and 
the priestly order multiplied, till the great ceremonies re- 
quired superior priests to direct and, under them, those who 
prepared the sacrificial ground, dressed the altars, slew the 
victims and poured the libations, those who chanted the Vedic 
hymns and those who recited other parts of the service. In 
the course of time a priestly order was thus developed. As 
the conquests of the invaders were extended by continual 
wars against the primitive people, the leaders of the army, 
who were rewarded with such possessions as enabled them to 
devote all their time to the service of the king, became the 
military class. The common people who settled down and 
tilled the soil became the Vaisyas, and beneath them were the 
conquered people who were forced to serve the invaders. In 
this manner the four fundamental castes, which, with their 
numerous divisions, subdivisions and new classifications, have 
given to Indian society its peculiar structure, were founded. 
The Brahmans have always asserted their superiority over all, 
but this has not always been conceded by the military caste, 
and the relative power and influence of these leading castes 
have fluctuated with the varying conditions due to the rise 
and fall of dynasties and the strength or weakness of princes 
and other causes. 

The Vaisyas were the lowest caste of the Aryan stock, yet 



176 EVOLUTION OF GOVERNMENTS AND LAWS 

were ranked as belonging to the "twice born" and were all 
allowed to be present at the great national sacrifices. The 
lowest were the once born Sudras, the Dasas of the Veda, 
whose lives were spared by the conquerors in order that they 
might live as a servile class. These were not allowed to at- 
tend the great sacrifices and feasts. It was their lot to per- 
form the hardest and meanest labor, and from their low 
estate they could never rise. The system of castes did not 
fully develop until after the Aryans were well settled along 
the Ganges. It did not obtain in the early settlements west 
of the Indus. In the Middle Land, from Delhi to Benares, 
the Brahmans became a compact body which assumed to dic- 
tate to all classes in all matters relating to religion, philosophy 
and law. They denounced all Aryans who did not submit 
to their pretensions as lapsed and outcast tribes. The re- 
ligious thought of the people found its expression in the 
Vedas, which were ultimately compiled and reduced to writ- 
ing. The Brahmans however were not content with the en- 
forcement of religious rites and the preservation of the 
ancient faith. They sought to secure their own position and 
the social system which had been developed by codes of laws. 
The earliest of these are the Dharma Sastras, which exhibit 
the state of the Hindu law at an early date, not fixed with 
any degree of certainty. They do not purport to be new 
enactments, but simply compilations of existing law. They 
recognize and enforce the division into castes in the order 
stated. Later than this came the great code of Manu which 
the Brahmans ascribe to the first Aryan man thirty millions 
of years ago. This was a compilation of the laws which had 
been established in that portion of India where the Brahman- 
ical order exercised the greatest influence. This so-called code 
has wielded a more powerful influence and over a far wider 
field than any native dynasty ever established in India. So 
strong a hold did the system which it expressed gain on the 
people of India that its leading tenets have maintained their 
authority through all the mutations of race and empire, even 
to the present day. Later than this came a second great code 
that of Yajnavalka, compiled after the establishment of Bud- 



INDIA 177 

dhism. It is a reiteration of the laws of Manu with some 
additions relating to legal forms and other matters. 

These codes found their sanction in the Vedas, which had 
attained the authority of inspired writings, and the rules de- 
clared for the government of all classes of people were mainly 
extracted from the Vedic Sanhitas. While the purpose to 
exalt the Brahman caste is evident, it was not the gross super- 
iority which comes merely with the possession of wealth and 
political power, but a far better and more enduring superiority 
was sought and in fact attained. The Brahmans were made 
the custodians not merely of the religious ceremonials but of 
learning as well. Purity of morals and of blood were en- 
joined, and the leading idea at all times seems to have been 
to maintain a genuine intellectual and physical superiority over 
the native races and also over the inferior Aryan castes. The 
three original Aryan castes Brahmans, Cshattriyas and Vaisyas 
all observed the same domestic rites at birth, first feeding of 
rice, investure with the sacred thread, marriage, funerals, etc. 
The most important of these observances was the upanayana 
or conducting the boy to his teacher. Connected with this 
was the ceremony of investing with the sacred cord, which 
was worn over the left shoulder and under the right arm, 
varying in material according to the class of the wearer. 
This was the preliminary to his initiation into the study of 
the Veda, the management of the sacred fire, the knowledge 
of the rites of purification, and the invocation to the sun, 
which he must repeat morning and evening. 

The steps by which the principles of Brahmanical law were 
extended and enforced, throughout not only Hindostan but 
farther India as well, cannot be traced historically, but certain 
it is that the code of Manu, modified by and adapted to local 
conditions and customs, forms the basis of the social or- 
ganization of the many races of India. While the system of 
castes is often spoken of as the most rigid and inflexible in- 
stitution ever established, it seems to have been so moulded as 
to adapt itself to all the varying conditions of that most 
varied aggregation of people, and in matters of belief the 
Indian pantheon appears at one time or another to have had 



i/8 EVOLUTION OF GOVERNMENTS AND LAWS 

a place for every god and religious ceremonial, a form suited 
to the prejudice of every clan. 

The Brahmanical codes were never dependent for their 
enforcement on any particular ruler or ordinary governmental 
agency. Their principles were inculcated into all classes by 
the teachers, who acted also as judges in controversies aris- 
ing among the people. 

The first powerful attack on the influence of the Brahmans 
resulted from the teachings of Gautama in the sixth century 
B.C. He was the son of the chief of the Sakyas, an Aryan 
clan dwelling* about one hundred miles north from Benares, 
and was himself of the Cshatriya caste. Having abandoned 
all the privileges of his station and formulated his system of 
religion, he proceeded to teach it as a mendicant, begging 
his subsistence wherever he went. He sought to establish no 
new government or organization of society, but to teach men 
the way to permanent peace and happiness, to rest in Nirvana. 
He taught the Brahman doctrine of the transmigration of 
the soul, and that existence must be endured till the soul be- 
came pure and free from all evil passions and desires. The 
purity and loftiness of his doctrines are fairly expressed in 
the following extract from the Buddhist Scriptures. Answer- 
ing the question as to what he considered the greatest blessing 
he said, "i. To serve wise men and not fools, to give honor 
to whom honor is due, this is the greatest blessing. 2. To 
dwell in a pleasant land, to have done good deeds in a former 
birth, to have right desires for one's self, this is the greatest 
blessing. 3. Much insight and much education, a complete 
training and pleasant speech, this is the greatest blessing. 
4. To succor father and mother, to cherish wife and child, to 
follow a peaceful calling, this is the greatest blessing. 5. To 
give alms and live righteously, to help one's relatives and do 
blameless deeds, this is the greatest blessing. 6. To cease 
and abstain from sin, to eschew strong drink, not to be 
weary in well doing, this is the greatest blessing. 7. Rever- 
ence and lowliness, contentment and gratitude, the regular 
hearing of the law, this is the greatest blessing. 8. To be 
long suffering and meek, to associate with members of the 



INDIA 179 

Sangha, religious talk at due seasons, this is the greatest 
blessing. 9. Temperance and chastity, a conviction of the 
four great truths, the hope of Nirvana, this is the greatest 
blessing. 10. A mind unshaken by the things of the world, 
without anguish or passion and secure, this is the greatest 
blessing. 11. They that act like this are invincible on every 
side, on every side they walk in safety and theirs is the great- 
est blessing." 

The teachings of Gautama, though not directly attacking 
the institution of caste, left no place for it. Nirvana .was 
open to the Sudra as well as the Brahmen. The same course 
of conduct was enjoined on all and the vanity of all earthly 
possessions and power was a leading theme in his teachings. 
He organized a society called the Sangha, whose members 
forsook worldly callings and taught his doctrines. The 
Buddhist monasteries, afterward so numerous wherever his 
religion became established, are the successors of this society, 
though the practices and doctrines of the early time have 
been much corrupted. The new religion was spreading among 
the tribes of Northern India at the time of Alexander's in- 
vasion 327 B.C. but had not become general. 

From the Greek historians we gain the first historical ac- 
counts of India as seen through the eyes of Europeans. The 
impression was of a country of vast wealth and numerous 
people. The most potent monarch Alexander encountered 
was Porus, whose dominions appear to have been in the 
Eastern part of the Punjab. His force is stated at 30,000 
infantry, 4,000 cavalry, 200 elephants and 300 war chariots, 
though the combined forces of the Oxydracae and Malli which 
Alexander afterward encountered are said to have amounted 
to 90,000. Alexander's conquests extended only into the 
Punjab and did not prove permanent. Following the Greek 
invasion Chandra Gupta founded his empire in what is now 
the province of Behar with his capital at Patna. Seleucus, 
who succeeded on the death of Alexandria 323 B.C. to the 
Empire of the East, was unable to maintain his authority in 
India and finally concluded an alliance with Chandra Gupta, 
giving him his daughter in marriage and sending Megasthenes 



180 EVOLUTION OF GOVERNMENTS AND LAWS 

as an ambassador to reside at his court. Megasthenes wrote 
a full account of the condition of society in India at that time, 
and his account of the system of castes corresponds in the 
main with that obtained later through Indian sources. He 
divides the people into seven classes, viz. philosophers, hus- 
bandmen, shepherds, artisans, soldiers, inspectors and coun- 
sellors of the king. 

He commented favorably on the absence of slavery, the 
chastity of the women and the courage of the men. Each 
village was a little republic, owning the land by a common 
title, though tilling in separate tracts. The people were truth- 
ful, sober and industrious, living peaceably in their com- 
munities. India he says was then divided into 118 kingdoms. 
General descriptions of a country so vast as India must then 
have been very imperfect. Though the disposition of the 
people was peaceable, wars between the petty kingdoms oc- 
curred, resulting in the rise and fall of rulers and the ag- 
grandizement of one at the expense of another. 

The kingdom founded by Chandra Gupta was extended 
under his grandson Asoka over the whole of Northern India. 
After a bloody early career, in which among the deeds 
charged to him is that of ordering the slaughter of all his 
brothers but one, in the year 257 B.C. he became converted 
to the Buddhist faith. He was as vigorous in inculcating the 
new religion as he had been in war, and Buddhist monasteries 
multiplied all over his dominions. He sent ambassadors to 
Egypt, Cyrene, Syria and Macedonia. At his death, after a 
long and prosperous reign, his empire fell to pieces. One 
of the prominent features of Asoka's reign was the great 
council of Buddhists, held at his call 244 B.C., at which the 
canons of the faith were discussed and promulgated in what 
is termed by northern Buddhists the Lesser Vehicle, in con- 
tradistinction to the Greater Vehicle, a more voluminous com- 
pilation, engrafting many new practices and articles of faith, 
which was settled by the fourth and last great council held 
in the reign of Kanishka, who ruled northwestern India, as 
well as a considerable district lying to the north and west of 
it. The Greater Vehicle became the law for the Thibetan and 
Chinese followers of Buddha. 



INDIA 181 

About 126 B.C. the Tartars are said to have driven the 
Greeks from Bactria and their settlements from the Punjab. 
The empire of Kanishka is styled Scythic, and there seems 
to have been at that period an extensive movement of Scyth- 
ians into India. They did not meet with a peaceful reception, 
and the princes and warriors who successfully resisted their 
encroachments are celebrated by Hindu writers. They ap- 
pear however to have maintained a part of their conquests 
and the modern Jats and some tribes of Rajputs are said to 
be of Scythic stock. 

Later came invasions of Huns. To trace the varying for- 
tunes of the natives and their invading enemies is a great 
and exceedingly difficult task, not contemplated in this work. 
Recurring periods of bloodshed and the desolations of war 
interrupted the calm devotions of the faithful followers of 
the teacher of peace and good works. Notwithstanding the 
inculcation of the injunction not to kill, the people of India 
stood their ground and on the whole seem to have had rather 
the better of the struggle with the ruder people from the 
northwest. Aryan and non-Aryan people alike were engaged 
in opposing the invaders, as well as in warring with each 
other from time to time. In about 630 a Chinese pilgrim 
found both the northern and southern sects of Buddhists in 
India and listened to their debates at various places. 

Brahmanism continued in spite of the growth of the new 
religion. It was doubtless materially aided by the frequently 
recurring wars, when fierce war gods, who were given places 
in the pantheon, were deemed more serviceable than the pas- 
sive virtues of Buddha. About the seventh and eighth cen- 
turies there seems to have been a revival of Brahmanism, and, 
at the time of the Mohammedan invasion, Buddhism had 
nearly disappeared from India. 

The first Mohammedan invasion was in 664, only thirty- 
two years after the death of the Prophet, but it was without 
permanent results. In 711 Sind was invaded and subjected to 
the rule of Waldi I, Caliph of Damascus. In 750 the Moham- 
medans were driven out. No further invasion is mentioned 
until 977, when the Punjab was made tributary to Sabuktagin 



i82 EVOLUTION OF GOVERNMENTS AND LAWS 

Sultan of Ghazni. His son Mahmud invaded India repeatedly 
with his armies and fought successfully great battles, as the 
result of which his authority was extended as far as the 
Ganges. Khusru, a son of the last of the Ghazni dynasty, 
having been driven out by the Afghans of Ghor, founded at 
Lahore a short-lived Mohammedan dynasty, but the Afghan 
Mussulman waged successful war against his son and took 
him prisoner. Under Muhammed Ghori the new empire was 
extended by successive conquests over the entire northern 
plain as far as the Brahmaputra. At the death of Muham- 
med the viceroy, through whom he had governed India, pro- 
claimed himself sultan at Delhi. In 1294 Allah-ud-din Khelji 
raised himself to the throne of Delhi. He extended his do- 
minions to the south and his armies penetrated to the extreme 
south of the Peninsula. The descendants of Allah-ud-din 
occupied the throne but five years when in 1321 Gheyas-ud- 
din Tuglak, said to have been a Turk, established a dynasty 
which lasted till the invasion of Timur, seventy years later. 

The period of the rule of this dynasty was one of magnifi- 
cence at court, of war and tyranny. Revolts against the 
sultan in various quarters prepared the way for Timur, who 
invaded India in 1398 and gained most unenviable fame for 
his cruel slaughter and enslavement of the people. The city 
of Delhi and many other towns were sacked, and the people 
of all ages and sexes indiscriminately slaughtered. Great 
numbers of captives were taken back to his capital at Samar- 
kand as slaves. He established no permanent government 
and his invasion was followed by a period of small states 
without any great authority. 

In 1525 Baber, the fifth in descent from Timur, by invita- 
tion of the governor of the Punjab, invaded India and 
founded the great Mughal empire, which however was not 
generally recognized during his life, but his actual authority 
extended over only a limited and not clearly defined territory. 
His son Humayun was driven out of India by Sher Shah, a 
native of Bengal, who established an extensive though brief 
authority over Hindostan. Akbar, the son of Humayun, ap- 
pears the real founder of the Mughal empire, which lasted 



INDIA 183 

till finally overthrown by the British. Humayun died in 1556 
when Akbar was fourteen years old. 

Under the guardianship of Bairam Kahn he first established 
his authority in the Punjab and on the upper Ganges about 
Delhi and Agra. From this basis he extended his dominion 
over the greater part of India. He was not only a great con- 
queror but a noted civil governor. He reformed the system 
of taxation in such manner as to make the burden fall more 
equitably than before and at the same time produce ample 
revenue. He established many public schools, was tolerant to 
all religions, and it is said that though raised a Mohammedan 
he had no fixed religious belief. In his military system he 
employed native Rajputs on equal terms with his Mughals. 
His favorite wife was a Rajput princess. He was superior 
to all his predecessors in his understanding of the character 
and prejudices of the people over whom he ruled, and he suc- 
cessfully adapted his system to the vast mixed population of 
his dominions. Under his grandson Shah Jahan the empire 
reached its period of greatest magnificence of which many 
noted monuments remain. 

The Taj Mahal at Agra, erected as the mausoleum of his 
favorite wife, is regarded as a model of beauty and purity in 
architecture never surpassed. Aurangzeb succeeded his 
father, Shah Jahan, in 1658 and before his death extended 
the empire over the Deccan and to the extreme south of the 
peninsula. While his territory was extended, the fibre of his 
government seems to have weakened, and after his death the 
empire fell in pieces never again to be reconstructed. Petty 
sovereigns divided the dominion and exercised authority over 
its various districts. In 1 500 the first permanent lodgement of 
Europeans in Hindostan was effected by the Portuguese on 
the Malabar coast. For a century thereafter they enjoyed a 
monopoly of oriental trade. The Dutch were the first to 
break this monopoly and were soon followed by the English 
and French, whose struggle for supremacy will not now be 
considered. 

While it seems altogether natural and proper to speak of 
India as a single country and to consider its history as an 



i84 EVOLUTION OF GOVERNMENTS AND LAWS 

entirety, the foregoing brief summary of some leading events 
omits mention of princes without number, who from time to 
time ruled over more or less of the country. From the earliest 
times the wealth of India has been proverbial, and it has at- 
tracted alike the traders and the armed invaders. The latter 
have been of two classes, those who came merely to add ter- 
ritory to a foreign empire, and those who came to gain set- 
tlements in the country. The Aryan movement is the earliest 
of which records have been preserved, but they found the 
country already peopled. When and whence those early peo- 
ple came upon the scene cannot be told. 

While the original Aryan invaders do not appear to have 
ever established a government over the whole country or even 
over the greater portion of it, they did impose their religion, 
their laws and customs in nearly all parts of the peninsula. 
Some of the early tribes, however, never accepted their teach- 
ings and their religion has been corrupted with local super- 
stitions to such an extent in many places as hardly to be 
recognizable. Nor are their laws governing marriage, in- 
heritance and property rights in general uniformly followed. 
On the contrary local superstitions and customs have pro- 
duced infinite variety of worship, ceremony and local law. 

The practice of burning widows with the dead bodies of 
their husbands, called suttee, is chargeable to the Brahmans 
and was followed by people of the highest classes. It was 
esteemed a virtuous act for the widow to follow her husband, 
and the meaning of the word suttee or sati is a virtuous wife. 
Though this custom is an ancient one it is not sanctioned by 
the Vedas or the code of Manu. It was practiced by other 
ancient people, notably the Scyths. Some of the Kandh clans 
practiced human sacrifice in most cruel and revolting manner 
until very recent times. 

The institution of caste has shown the most marked staying 
qualities, and the original simple divisions of the Aryan 
invaders into four castes has been followed by more than a 
thousand different divisions, partaking of the nature if not 
strictly designated as castes. Very few of the people of all 
India are wholly exempt from caste distinctions. Some of 






INDIA 185 

the wild hill tribes are said to have no castes, and, of course, 
Europeans and other new comers into the country cannot be 
said to have castes. They are nevertheless classed by them- 
selves by the Hindus, and the system of classification is so 
deeply rooted that, as to the great mass of the people of India, 
all kinds of people are assigned to some class, and the observ- 
ance of their own castes by the Hindus operates to a great 
extent in fixing a caste for all newcomers. The main excep- 
tion to the prevalence of strict castes is among the Moham- 
medan population. As they look to the Koran for their law 
and as Mohammed made no distinction of race, color or con- 
dition among his followers, the true believer has no basis for 
caste distinctions. There are, however, especially among the 
Mongolian and negroid races, many nominal Mohammedans, 
who adopt many Hindu customs and observe caste restrictions. 
Of the whole population nearly three-fourths are classed as 
Hindus in religion, and nearly three-fourths of the remainder 
as Mohammedans. The natural tendency for those engaged 
in a particular profession or business to associate and com- 
bine, because of similar tastes and common interests, has 
supplemented the policy of the early Aryans, which seems to 
have aimed mainly at the maintenance of the supremacy of 
the conquering race and of the rank of the Brahmanical order. 
Neither in religion nor in law has a uniform system ever 
prevailed over the whole country. Different modifications of 
the pantheon of gods have been made to meet the demands of 
different tribes, till under the general head of Hindus are 
included all grades and shades of faith and ceremony, from 
those of the high minded Brahman, who seeks by rigid fast- 
ing, meditation and prayer to divest his soul of all evil pas- 
sions and worldly desires, in order that he may find rest with 
the divine essence, to the worshippers of the destroyer, who 
seek by human sacrifices to avert the wrath of wicked gods. 
The leading features of the caste system seem to be adapted 
to all races and conditions. Not only do those belonging to 
the higher castes insist on its rigid maintenance, but those 
belonging to the inferior ones find that it accords with their 
wishes and inclinations. The old saying that "birds of a 



i86 EVOLUTION OF GOVERNMENTS AND LAWS 

feather flock together" expresses the natural tendency of those 
occupying similar social position or engaged in similar pur- 
suits to associate, and in India this natural tendency has been 
crystallized. The leading advantages of the system would 
seem to be that it tends to make the low born content with 
their lot, and that each son is brought up to follow the calling 
of his father, by which means each profession and calling will 
be filled by men better educated and qualified than where 
there is a constant shifting of members of the family from 
one calling to another. The reality of even this advantage 
may be debatable. On the other hand to western men the 
tyranny of the system seems intolerable. Its rigidity prevents 
spontaneity and progressiveness, and removes all hope from 
the low born of rising out of his class. The evolution of the 
race seems to require selection from the whole mass of popu- 
lation, if a maximum of vigor is to be maintained among the 
leaders. Dynasties of rulers invariably degenerate and either 
die out or are cast out because of their weakness or vice. 
Though the village system is regarded by many writers on 
law and government as primitive and an embryonic govern- 
ment, it prevailed over most of India till the advent of the 
British, and is still maintained throughout a great part of 
the country. The details of the system vary, its leading char- 
acteristics are a well defined district of land occupied by a 
community, whose local affairs are regulated by officers usu- 
ally chosen by the people but sometimes hereditary. In a 
large percentage of the villages the title to the land was held 
in common and taxes to the sovereign were paid by the com- 
munity as a unit from the proceeds of the harvest. The vil- 
lage authorities assigned the land for tillage to the various 
citizens, and adjudged all controversies between them. The 
tillage was usually separate, even where the title was in com- 
mon. In other villages the land was held in severalty, but in 
dealings with the sovereign power and in the payment of 
taxes it was regarded as the unit. This system is not patri- 
archal, though it possibly may have been so in its earliest 
form. 

The kings and rulers seem to have regarded the people as 



INDIA i8> 

not entitled to much in return for the taxes paid and services 
rendered the sovereign. Aside from defending them against 
outside foes, the government never attempted much in their 
behalf. In public works there is nothing worthy of mention 
but palaces, temples and the great roads constructed by the 
Mughals. Though the people of the higher castes, the twice 
born, have always enjoyed some advantages of education, it 
has been given them by the Brahman caste and private teach- 
ers, not by the king. The fertility of the soil and the patient 
industry of the people have led to most excessive and burden- 
some taxation, to great pomp and luxury in the palaces and 
to extreme distress among the poor when crops have failed, 
as they occasionally do. One-third of the gross yield of the 
land seems to have been regarded as about the right proportion 
to take, and under the Mughals this was exacted from the 
villagers and is at this day by the British in many parts from 
the best lands. 

Nowhere else on the face of the earth can be found so dense 
a population, covering such a vast extent of country, living 
under an ancient system of laws and yet without a general 
government, as existed in India at the advent of the British. 
China during most of its history has had a well organized 
governmental system, whose authority has been recognized 
over most or all of its territory. Its people also have been 
mainly of one race. India exhibits the peculiar spectacle of a 
vast empire, with endless diversity of races, speaking many 
different languages, yet recognizing and obeying in its main 
precepts a code of laws promulgated in the dim past by un- 
known persons, a code which was never promulgated by a 
sovereign power having dominion over the ancestors of the 
people or the land in which they dwell. It owes its authority 
mainly to the teachings of the Brahmans and to its adoption as 
the rule of decision by the judges and rulers in past ages, as it 
has been adopted and followed by the British in recent times. 
Some analogies to this may be found in the adoption of the 
principles of the Roman civil law by countries never subject 
to the empire, and in the adoption of the Koran as the law 
of all Mohammedans, but in the one case the system was 



i88 EVOLUTION OF GOVERNMENTS AND LAWS 

gradually developed under a strong government ruling a vast 
empire, and in the other the authority of the law is consequent 
on religious faith. 

The area of the country we have been considering is nearly 
a million and a half square miles and it now has a population 
of nearly or quite 250,000,000. Among this vast mass are 
remnants of what are believed to be the earliest inhabitants of 
the country, whose lowest type is exhibited by the savage 
Andaman islanders, wholly devoid of all civilization. Superior 
to these yet still very low in the scale of humanity are the 
monkey faced tribes of the south, the Bihls and other pre- 
datory hill tribes and the almost numberless fragmentary 
remnants of races that in past ages may have held extensive 
districts. Above these are the industrious descendants of 
Mongolian stocks, the Dravidians, the Indo Chinese, the Af- 
ghans, Mughals, Arabs, Persians and the proud descendants 
of that race which composed the Vedas and promulgated the 
codes. This vast empire is now subject to the government of 
a little island on the most remote border of the hemisphere. 
The government of the British will be considered in another 
place. 

Though Great Britain has long maintained its sovereignty 
over India, it has never attempted to impose its system of laws 
on the people. The ancient stratification of society still per- 
sists and the code of Manu is still the basis of the law adminis- 
tered in the courts. This code is so remarkable in its precepts 
and has so profoundly influenced the vast population of India 
for thousands of years that it is well worthy the careful study 
of every investigator in the field of human laws. A summary 
of its provisions with copious extracts from the more striking 
parts will be found in the Appendix. 

The student who seeks a comprehensive knowledge of the 
rules actually applied throughout all that vast country, extend- 
ing from the valley of the Indus to Siam, encounters a most 
perplexing multiplicity of details. The Code of Manu is recog- 
nized as the foundation of the laws of Hindostan and also of 
Burmah, Siam and Ceylon, yet there is wide divergence in the 
practical application of it in different places, 



INDIA 189 

As a result of the teachings of Gautama the Code of Manu, 
though still recognized as the basis of the laws, was greatly 
modified in those districts where the Buddhist faith prevailed. 
The Burmese code, called the Damathat, gives the primary 
classification of men as Chiefs, Brahmans, wealthy and poor, 
and elsewhere the mercantile class is mentioned as a distinct 
order. In the twenty-third section of the fourth volume of 
the Burmese code, the Royal family is mentioned as the high- 
est class, and other relations of the King, the great Chiefs, 
ministers or lords, the lesser lords, lords of lower degree, 
wealthy class Brahmans, thoogyees of villages, governors, land 
measurers, and those whom the King had advanced, as con- 
stituting the next class. The second class and the mercantile 
are each divided into the great, middle and lesser. The right 
of the King to raise from the lower to the higher orders is 
asserted and the rigid rules of inherited castes do not obtain. 
Though the system evolved by the early Aryan invaders 
spread over all India as the basis of all the written laws, in 
the east it has been modified by the influence of Buddhism 
and the Chinese and in the west by Mohammedanism. Ow- 
ing to the lack of a single governing force having authority 
over the whole country no version of the code has at any 
time found full recognition, even throughout the whole of the 
Indian peninsula, and the actual administration of the law 
has at all times been more or less dependent on the will of 
despotic rulers, having authority over more or less of the 
country, according to circumstances. 

The Burmese code exhibits marked differences in the theory 
of the distribution of inheritable property. The rules given 
are very loose and indefinite. On the death of the father 
the eldest son is given "the riding horse, elephant goblet, betel 
apparatus, sword, clothes and ornaments, and of the slaves, the 
betel carrier and two water carriers; and let the mother have 
her clothes and ornaments, goblet, betel apparatus, and all 
female slaves. Let the residue be divided into four parts, of 
which let the eldest son have one and the mother and younger 
children have three. This is the law when the mother does 
not marry again; if the mother uses the property for neces- 



190 EVOLUTION OF GOVERNMENTS AND LAWS 

sary subsistence let her have the right to do so. If the mother 
takes another husband (a thing prohibited by the code of 
Manu), the portion of the eldest son, animate and inanimate, 
shall be noted before witnesses and taken care of; and if he 
be too young to separate from his parents, and the mother 
dies, let him have all that has been apportioned to him above 
and, having divided the portion of the mother into four parts, 
let the stepfather have one part, and the eldest son three. 
The original property and debts of the step- father shall not 
be divided but of the mother's original debts let the step- 
father pay one-fourth; having valued the house let the step- 
father have one-fourth." Laws of Menoo, Vol. 10, sec. 5. 

On the death of the mother "let the eldest son have one 
male slave, one pair of good buffaloes, one pair of oxen, one 
foreign and one Burman goat, with one pay of arable land; 
with the exception of these things let the father and younger 
children have all the property animate and inanimate." 

In case the father is not possessed of the specific property 
named, compensation in money is provided for and, if not 
able to pay, less is to be given according to his means. 

On the death of the father the eldest son only is assigned 
his share. The younger sons must wait till the death of the 
mother. 

When both father and mother die leaving only daughters, 
the eldest takes all her mothers clothes and ornaments, and 
all other property is divided into twenty parts, of which the 
eldest takes one. The balance is then again divided into 
twenty parts, and the next daughter takes one, and after a 
third division for a third daughter the balance is divided 
equally among all. 

Where father and mother both die leaving sons only, the 
eldest takes the clothes and ornaments of the father and the 
remaining property is divided into tenths of which he takes 
one. The remainder is divided into tenths of which the sec- 
ond son takes one; the balance is again divided into tenths 
of which each of the others takes a share, and the remainder 
is then divided equally among all. 

In case there are both sons and daughters the eldest son 



INDIA 191 

takes the father's clothes and ornaments, the eldest daughter 
the mother's, and the residue is then divided into fifteenths 
and distributed to each according to age on the above prin- 
ciple till the seventh distribution has been made, and the bal- 
ance is then divided equally. 

After these regulations follow others fixing the rights of 
step-fathers and step-mothers, and children of the half-blood, 
of collateral relation, and providing for cases which would 
seem likely to be rare and exceptional. The tenth volume of 
the Burmese code, which relates to the law of inheritance, 
contains eighty-one paragraphs and covers fifty-six pages. 
Besides these there are various provisions on the same subject 
in other parts of the code. The right of a woman to own 
property is generally recognized throughout India, but with 
varying local regulations. 

A compilation of Hindu laws translated from the Sanskrit 
into Persian and from the Persian into English called the 
Gentoo Code contains provisions relating to property rights 
in quite strong contrast with western laws. 

"If a man owes money to several creditors, he shall first 
discharge that debt which was first contracted and so in or- 
der." Sec. 5, page 25. 

This would seem more just than the law which favors the 
hard creditors who first attaches his debtor's property. 

Gifts made under the impulse of violent fear, anger, lust, 
grief, by mistake, in jest, by a child or an incompetent person, 
or when intoxicated may be recovered back. In times of 
calamity a woman may borrow for necessaries and bind her 
husband to pay the debt, and the husband may at such a time 
give away his wife with her consent. The father may also 
sell or give away his son with his consent. 

In cases of partnership capital furnished by one is regarded 
as equivalent to the labor of another and profits are divided 
according to agreement where one is made, but, in the absence 
of an express contract, according to the amount of capital 
contributed and services rendered. 

When robbers go to a distant country and return with their 
booty this code provides for its division. The magistrate, that 



192 EVOLUTION OF GOVERNMENTS AND LAWS 

is the ruler of the district, takes one-tenth to one-sixth of the 
whole, a chief takes four shares, a stout man two, and a com- 
mon man one. 

The contracts of prostitutes are recognized and enforced, 
and the law protects them from violence or abuse. 

The penalties denounced against crime by the Gentoo code 
are graded all the way from a small fine to crucifixion, the 
latter punishment being imposed for highway robbery or 
robbery committed by breaking through a wall. For killing 
a goat, a horse or a camel, a hand or a foot shall be cut off, 
but this does not apply to those who make their living by 
butchery. 

In the Burmese code very great prominence is given to do- 
mestic relations and penalties for illicit sexual .intercourse. 
The grounds for separation of husband and wife are many, 
and minute provisions are made for division of the property 
in cases of separation. 

The religion of the Buddhists does not allow capital punish- 
ment. This code shows many marks of the influence of the 
Buddhist religion, and punishments are mainly by fines and 
the use of the rattan. In no case is the death penalty im- 
posed by the code, though it is in fact sometimes inflicted by 
despotic rulers, and the evil passions of men sometimes find 
expression in bloody deeds, notwithstanding the general ac- 
ceptance of a religion of peace. 

Perhaps this code states the immorality of war as pointedly 
and gives it a more formal sanction than any other authori- 
tative expression of legal principles. 

"When there has been a revolution or change of rulers, in 
a country, there are four cases which may, and four which 
may not be prosecuted. Of the cases which may not be prose- 
cuted, they are murder, obscene language and assault with 
wounding, theft, and adultery; these are the four which shall 
not be prosecuted after a change of kings. The five which 
may be prosecuted are debt, inheritance, disputes regarding 
lands the property of convents (church property) hereditary 
slaves, and deposits; these are the five which may be prose- 
cuted notwithstanding a change of rulers." Vol. 2, Sec. 8, 
page 43- 



INDIA 193 

No similar provision is contained in the code of Manu. 

By this law the abominable crimes incident to war are ex- 
cused, while the arbitrary and unjust rules of slavery and 
inheritance continue without regard to the fortunes of war. 
Though the principles of this section are not generally em- 
bodied in the published codes of the Christian states, they are 
recognized and enforced in practice. Except when committed 
in violation of military discipline, the grossest crimes of sol- 
diers go unpunished. 

Not only have the Indian law-makers evolved an elaborate 
body of written rules for the determination of the rights of 
parties, but rules of pleading, evidence, presumption and prac- 
tice have also been established. By the Gentoo code a person 
cannot be brought into court when celebrating a marriage, 
while sick, or engaged in religious duties or as a vakeel, at- 
torney, and generally if at work he must be allowed to finish 
his task. A party may appear in court either in person or by 
attorney, except in cases of murder, robbery, adultery, eating 
prohibited food, false abuse, false witness and one other 
disgusting offence in which the principals must answer in 
person. When the plaintiff and defendant come before the 
court the plaintiff shall state his case so "that the words be 
few and the meaning extensive," and that the first and last 
parts be well connected and consistent. If he states his case 
in writing the defendant must then do so. Numerous rules 
of pleading are given, and mistakes subject the party making 
them to a fine, but not to the loss of his rights. The defend- 
ant must answer within seven days and if he fails to do so 
judgment may be rendered against him. A person accused 
of murder, robbery, scandalous abuse of a magistrate, calling 
a woman unchaste, destruction of valuable goods, criminal 
conversation with the wife of the father other than the mother 
of the accused, or brought to answer a matter concerning a 
cow, a dispute over a slave girl, or drinking wine, must answer 
at once. In all other causes the defendant may have delay 
but the accuser shall in no case make delay, except in case of 
calamity. The Burmese version of the code fixes a general 
statute of limitations, barring claims for money, lands and 



194 EVOLUTION OF GOVERNMENTS AND LAWS 

slaves held adversely for ten years; but in cases relating to 
lands and slaves given to pagodas temples and convents, 
boundary marks between cities or villages and a slave de- 
scended in the family from forefathers of the owner, and 
whose class is unknown, there is no limitation of action. The 
Gentoo code prescribes eleven years for chattels and twenty- 
one years for land, where the plaintiff is under no disability, 
with a longer limitation in cases of trust, extending to sixty 
years where it relates to land. By this code it is provided : 

"When an arbitrator of discernment hears any affair he 
shall first demand of the plaintiff 'What is your claim?'. The 
plaintiff shall then relate his claim. Afterward he shall de- 
mand of the defendant 'What answer do you return in this 
case?'. The defendant also shall then repeat his answer. 
Upon thus having heard the accounts of both plaintiff and 
defendant, he who thoroughly investigates the nature of the 
affair is called an arbitrator of discernment, and such an arbi- 
trator as this shall be chosen." Chapter 3, Sec. 1, page 103. 

"When two persons upon a quarrel refer to arbitrators 
those arbitrators at the time of the examination shall observe 
both the plaintiff and the defendant narrowly and take notice, 
if either and which of them when he is speaking, hath his 
voice falter in his throat or his color change or his forehead 
sweat, or the hair of his body stand erect, or a trembling 
come over his limbs, or his eyes water, or if, during the trial, 
he cannot stand still in his place, or frequently licks or moist- 
ens his tongue or hath his face grow dry, or in speaking to 
one point wavers and shuffles off to another, or if any per- 
son puts a question to him, is unable to return an answer ; from 
the circumstances of such commotions they shall distinguish 
the guilty party." Page 119. 

Rules of evidence are quite different from those prevailing 
in the West. One may give false testimony to preserve life, 
and falsehood employed to procure a marriage, obtain sexual 
intercourse or benefit a Brahman are excusable. Page 130. 
Writings may be proved by a comparison of hands. Second- 
ary evidence in the form of hearsay from eyewitnesses is 
allowed. 



INDIA i 9 j 

"A minor until fifteen years of age, one single person, a 
woman, a man of bad principles, a father, or an enemy, may 
not be a witness, but if the father and the enemy are men of 
good disposition and speakers of truth, and men are well ac- 
quainted with the goodness of their dispositions and veracity, 
these two persons may be witnesses." Page 124. 

The legal profession of which no mention is made in the 
code of Manu is not practiced gratuitously as it was in ancient 
Rome, but the lawyer is a paid advocate whose right to com- 
pensation is enforced. Physicians also are protected by the 
courts, and aided in collecting their pay. The Burmese code 
provides : 

"Oh King! if any one shall call a doctor to prescribe for a 
sick person, and the doctor for the sake of the pay and to 
relieve the sick person, shall administer medicine to him; or 
if the doctor is called to wash the patient's head or avert the 
evil influence of the stars, and shall go to where he is called, 
and holding a small knife or stile for writing, shall only lay 
hold of the banisters or ascend the stairs, and if the sick man 
before his arrival, shall obtain relief, and on recovery shall 
ask 'did you use any charm? — did you give me one of your 
pills? — did you wash my head, or avert the evil influences of 
the stars?' — and insensible to friendship shall refrain from 
paying; if the doctor have an affection for him, he may get 
off paying; but if not he shall pay five tickals of silver. If 
a good doctor reaches the banisters, stairs or door; and a 
good pleader, though he do not state the case, if he only put 
up the sleeves of his jacket, or set down preparatory to speak, 
they shall be paid." 

"Any good pleader, though the statement of his case may 
not have been taken down, if he has only just sat down, or 
put up the sleeve of his jacket, shall have a right to his pay. 
There shall be no plea that the case was not noted. 

"If the client shall run away or conceal himself, the pleader 
shall bear the whole amount of the decree. If he produce or 
hand over the client, he is free, and shall have a right to ten 
per cent for his pay and security. If a pleader be bad he 
must take the consequences; if a court messenger commit an> 



196 EVOLUTION OF GOVERNMENTS A,ND LAWS 

wrong, he must take the consequences ; the cause he is engaged 
in shall not suffer. 

"If a pleader shall have gained a cause he has a right to a 
percentage. If he loses it, he has a right to a reasonable 
remuneration. If it be a matter of life or death, or redemp- 
tion for the same, and the client shall not suffer death, or pay 
the forfeit; the pleader has a right to a fee of thirty tickals 
of silver, the price of his client's body." 

"If a man shall say to a doctor 'give me medicine — if I 
recover, take me as a slave' ; if he do recover, and do not 
wish to become the slave of the doctor, he shall have a right 
to the legal price of his body, thirty tickals of silver." Vol. 
2, sees. 19 and 20, page 49. 

In Burmah trial by ordeal is allowable, but in a far more 
mild form than that which once obtained in Europe. 

"Oh, excellent king ! the decisions by ordeal are as follows : 
1st., each of the parties are made to take one tickals weight of 
water in their mouth, and light candles of equal length; this 
is called the trial by fire: 2d. the trial by water, both parties 
are made to go under water: 3d, both parties are made to 
chew one tickal's weight of rice; 4th, both parties to dip into 
molten lead. Of these four, in the trial by fire, let the person 
whose light goes out first be the loser if before the light goes 
out, one shall cough out the water from his mouth, in con- 
sequence of some portion having gotten into the trachea, let 
him lose; if the lights go out together, and neither cough out 
the water, let them spit out the water, and on weighing it, the 
person whose water weighs least, loses. In the trial by water, 
let the person who first comes up lose. In the trial by chewing 
rice, let each be made to chew one tickal's weight, and if be- 
fore the cup with which time is measured sinks, the rice of 
one be all finished, or swallowed) and one not, let the one 
whose rice is not finished lose; if they be finished together, 
let them wash out their mouths in a cup, and let him in whose 
water there is the greatest portion of rice lose, and let him 
whose water is the cleanest win. As regards dipping into 
(molten) lead let the person who is burned lose, and he who 
is not burned win. Thus the recluse said." Vol. 9, sec. 16, 
page 254. 



INDIA 197 

Witchcraft was recognized and dreaded and is defined, de- 
tected and punished in accordance with the provisions of the 
next section which gives some idea of the superstitions which 
prevail in that country. 

"Oh, excellent king! as regards the seven kinds of witches, 
or wizards; there is the witch who is so by reason of his 
condition; the two who are so by reason of medicine; the 
four who are hereditarily so by reason of the Nat of their 
parents, taking up his abode in the person continually, these 
are the seven. Of these seven the witch called hmau-wen, 
or kaway myouk, is the greatest ; next below him is the hneet- 
padat, the next is ieng-ta-lien or goung-pyan, the next zauga- 
nee, the next tha-tsong, the next kyay-tsong, and the next 
let-touk-tsong. 

"Of these kinds of wizards, the atha-tsong, kyay-tsong and 
let-tsong are those who at night eat flowers and parched grain 
within the enclosure around their own houses, fire issuing 
from their mouths. Of these the kyay-tsong and the let-tsong, 
become witches by taking certain medicines; the atha-tsong 
are so constitutionally, they do not bewitch people. If they 
are thrown into water seven cubits deep, they can sink so as 
to leave one, two or three knots of the rope above water. 
These are not proper objects to be banished from the village 
or district but the person who accuses them is not to be held 
in fault, he had a right to accuse them. It shall not be said 
that they sank in the water or that they floated. The state- 
ment of both parties, accuser and accused, is true; they are 
and they are not witches ; let them therefore bear the expenses 
equally. 

"Besides these ; the kaway cannot sink in the water, and the 
kneet-padat, though with great exertion, he can get under the 
water, he can only sink two knots (or cubits), five are left 
above water ; the ieng-ta-lien and the zau-ganee are the same. 
These four are wizards by reason of the Nat, who has been 
worshipped by the ancestors in succession, taking up his abode 
in their bodies. They eat the food put out for them in the 
small flat bamboo frames used for winnowing grain, and in 
little baskets; they bewitch people so as to cause their death, 



198 EVOLUTION OF GOVERNMENTS AND LAWS 

and then eat them; they also dig up the human bodies from 
the grave and eat them. Of these (the last), three cannot 
bewitch a person across a running stream, and even in the 
same village or district, they cannot bewitch a person seven 
houses distant. If these float, they must be banished the 
district. The kaway can bewitch a person even if a stream 
intervene, so this witch must be banished beyond several 
streams, to free the village from his influence. In these seven 
matters, these are truly the traditionary rules from the be- 
ginning of the world for trying any man or woman who 
practices witchcraft. In accordance with them, let the guar- 
dians of the law, the king, nobles, thoogyees, and heads of 
villages, after having arranged all the preliminary steps in 
strict conformity with the ceremonial prescribed for the trial 
of the seven kinds of wizards by the ancient teachers, select 
a piece of still water where there is no current, and in which 
there are no stumps of trees, rocks, or inequalities, and throw 
them into it. All matters connected with witchcraft are only 
made clear by the ordeal of water. As regards the doctors 
tamee, yooaytan, and other things, they are uncertain, and not 
to be depended on, whether the witch has bewitched another, 
and the fact is discovered, or the witch or wizard of them- 
selves confess that they are so. The four witches above men- 
tioned, even if people are afraid to associate with them, 
should be admonished by the three gems (god, the law, and 
the priests), and warned to desist (from these evil practises) 
and they should be called on to declare in the presence of the 
gems that they will observe the (five) moral duties and will 
renounce their bad habits, and to swear by the three gems 
that they will in future practice good works. This is the 
way good kings, embryo Boodahs, decide, and if the king 
passes sentence in like manner, the rains will be abundant, the 
rivers full, and the country flourishing and quiet. Thus the 
son of the king of Brahmahs, the recluse called Menoo said." 
The race which developed so complete a system of laws and 
of the administration and application of them to all forms 
of controversies has utterly failed to construct a form of 
government adapted to wide dominion or designed to check 



INDIA 199 

the abuses of rulers. All the great empires of India of which 
we have any account have been established by foreign con- 
querors. 

The authority of the king was in most instances established 
by military force. He might be a member of either the Brah- 
man or Cshttriya caste but very rarely of an inferior one. 
The superiority of the Brahmans has been perpetuated by 
education rather than by military force or political combina- 
tion. The Brahmans learned and conducted the religious 
rites and ceremonies and claimed to stand next to the gods. 
They were the teachers and expositors of the laws and to 
them were referred all questions of right. Their enduring as- 
cendency is clearly traceable to education and the recognized 
law of inheritance, not merely of property, but also of caste, 
of personal status, as a superior order. 

The Brahmans from very early times have been readers 
and writers. The mass of literature produced in the past is 
very great. Just when and how the various provisions found 
in the codes first came to be adopted there is no available 
means for determining. 

The religious conceptions of the people have tended to in- 
dividuality and segregation rather than extended combina- 
tions. The idea has prevailed that a man may purify and 
elevate his own soul by separation from his fellow men, 
through meditation and religious studies and observances. 
Testing moral worth by the good done to others and the 
value of social combinations by the advantages of mutual 
help, seems to have been generally discountenanced. Perhaps 
it may be difficult to establish a charge of general lack of 
fraternal feeling among the people, but it seems clear that 
there has not been great capacity for organizing and combin- 
ing to accomplish common ends. The common mistake of 
rating the relation of the individual to an imaginary personal 
god as of more importance than his relation to his fellow 
man and of assuming that there can be merit in conduct 
which does not tend to the well being either of the individual 
himself or some other person, has prevailed there, yet pos- 
sibly not more generally than in other parts of the world. 



2oo EVOLUTION OF GOVERNMENTS AND LAWS 

To abstain from all crimes and vice is the observance of a 
part of the moral law, but the more important and more diffi- 
cult task is to promote the welfare of the individual, his family 
and all others whom he can aid. The first may be termed 
passive morality, the second active. Passive morality affords 
peace and repose, active morality leads to a full and glorious 
life of enjoyment and satisfaction. In India as well as in 
Europe the most extended combinations of the strength and 
vigor of men have been formed for vicious purposes. The 
activities of war have generally appeared greater than those 
of peace, though exerted for immoral ends. Thousands of 
years of combinations of men to destroy each other have not 
yet taught them to make equally great combinations for 
mutual aid. 

The relative value of the civilization of any country can- 
not be safely gauged by the conditions existing at some se- 
lected point of time. If estimated in the eleventh century, 
Europe must have been condemned as the country of robbers 
and murderers, or if during the thirty years war as one in 
which the people generally had gone mad over religious medi- 
tations and discussions. 

The people of the United States of America from 1861 to 
1865 must have been condemned as a great family of fratri- 
cides, who deliberately sought each other's destruction without 
just cause on either side. 

Measured by the conditions prevailing throughout the last 
one, two or three thousand years, it may well be claimed that 
the civilization of India has been superior to that of Europe. 
There have been more people, and they have been less at war 
with each other and better supplied with enjoyable things than 
the Europeans as a whole. It is only within the past hundred 
years that population has multiplied rapidly in Europe and 
the general scale of comfort among the masses materially ad- 
vanced. All this gain comes from diminished efforts to de- 
stroy each other and more numerous and extensive combina- 
tions for mutual profit and advantage. It is strange indeed 
that men are so slow to perceive how quickly and bountifully 
obedience to the command to love and help one another is 
rewarded. 



INDIA 201 

If all men knew that they must remain on earth through 
successive incarnations and must find heaven or paradise here 
and not elsewhere, possibly there would be more disposition 
manifested to make the world better during this life in order 
to prepare it for the next. Whether the souls of this genera- 
tion shall return and inhabit the earth in the next or not is a 
matter of belief rather than of knowledge, but certain it is 
that our children and their descendants must abide in it till 
the race becomes extinct. No legacy can be passed down to 
posterity of such inestimable value as a well learned lesson 
of peace, concord and mutual aid. The boundaries of the 
moral law will be found coterminous with those of the true 
relations of man to man and to the living beings on earth. 
British rule in India has not yet revolutionized the educational 
system. The policy of giving free and universal instruction 
to the young does not prevail in the British Isles and very 
naturally would not be carried into India. The British have 
however made progress in introducing those great exponents 
of modern civilization, the railroad, telegraph, printing press 
and post office. Through these practical lessons of coopera- 
tion are taught and local animosities are diminished by com- 
mercial intercourse and social contact. The eradication of 
caste prejudices is a task of great difficulty and can only be 
effected by radical changes in the educational system and re- 
ligious teachings. The British maintain their rulership largely 
by taking advantage of local animosities and caste distinctions 
through which the natives are deterred from combining, and 
the government employs one to curb another. Increased in- 
tercourse with each other and with the outside world must in 
time produce their logical effects on the people, but the inertia 
of such a mass is very great and can only be overcome in a 
long period of time or by an exceptional wave of enlighten- 
ment, such as comes to any people only once in many cen- 
turies. India has had its experiences of this kind in the past 
and may again in the future. 

Note. — The extracts from the code of Manu are taken from the trans- 
lation of Sir William Jones edited by G. C. Houghton and published by 
Cox & Baylis, London in 1825. Those from the Burmese Code are from 
a translation published by the Baptist Mission at Philadelphia in 1848. 



CHAPTER X 

China 

In the study of any subject allowance must be made for 
perspective in order to gain a just comprehension of it. China 
is not merely geographically at the antipode to western Eu- 
rope and America, but it is equally remote and dissimilar in 
its civilization. First consider what the Chinese Empire is 
geographically. In area it covers about 4,200,000 square 
miles, about 421,000 square miles more than all Europe. 
China proper has an area of about 1,312,326 or about 389,000 
square miles less than Europe, exclusive of Russia. In climate 
it includes all varieties from the tropical district of Kwang 
Tung, to the regions of perpetual snow in the mountains of 
Thibet and Mongolia. In soil it has all gradations from the 
inexhaustible fertility of the rich loess lands of Chili, Shan-Si, 
Shen-Si, Kan-suh and Ho-nan to the barren rocks and sandy 
deserts of Gobi, and the equally barren peaks of the Thian- 
Shan and Kuen-Lun. Its surface shows every variety of 
formation from level plain to craggy mountain, and the most 
varied flora from the dense growth and endless variety of the 
tropics to the poverty and barrenness of the regions of per- 
petual frost. Its majestic rivers are but slightly inferior to 
the Mississippi, the Amazon and the Nile. Its fauna is rich 
and varied in species and numbers. But in nothing else is it 
so marked as in the numbers of its people and its unique 
civilization. The latest estimates accredit the empire with 
400,000,000 or about 45,000,000 more than all Europe con- 
tains. While the empire includes many tribes not of Chinese 
stock, and differing more or less in type from the Chinese, 
the great bulk of the population is distinctly of one race, 
speaking one language, with no more difference of dialect 
than is found in England, France or Germany. This vast 
empire is now, and for many centuries has been, ruled by one 

202 



CHINA 203 

government, while Europe with its boasted superiority is di- 
vided at this day into nineteen separate and independent na- 
tions. Not only do the people of one of these nations speak 
a language different from that of nearly every other, but 
several of the nations include people speaking many different 
tongues. The United Kingdom of Great Britain and Ireland, 
with a population about equal to that of the province of 
Kiang-Su, includes English, Welsh, Scotch and Irish. Russia 
includes Laps, Finns, Russians, Poles, Slavs, and Cossacks, 
differing widely from each other in language, customs and 
race characteristics. 

China proper is divided into eighteen provinces, but ah 
are under one government and one system of laws. The 
political map of Europe, ever since history began, has been 
subject to frequent and great changes. The nineteenth cen- 
tury has seen nations rise and fall and boundaries of nations 
expand and contract from one decade to another, to such an 
extent as to render a map twenty years old utterly unreliable. 

While China has had its internal wars and has at times been 
subjected to a divided rulership, it still has maintained its in- 
tegrity as a nation through thousands of years. It has been 
conquered by Tartars without revolutionizing its customs 
and laws, and with but slight effect on the great Chinese mass. 
Through all changes and vicissitudes the civilization to be 
found in China has been distinctly Chinese. Long before 
letters were introduced into Greece, the Chinese had their 
unique system of characters. The name of the inventor and 
date of the invention are given in one tradition as Fuh-hi 
3200 B.C. and in another as Tsang-ki 2700 B.C., either date 
however is sufficiently remote to precede the time when Cad- 
mus carried the alphabet into Greece by over 1500 years. 
That much progress in agriculture and the arts had been made 
long before the Greek tribes migrated from Asia Minor into 
Greece, is amply proved by the historical records of the Chi- 
nese, which extend back in credible and definite form at least 
as far as the reign of Yaou 2356 B.C. The first weaving of 
silk is ascribed to Si-ling-shi, wife of the Emperor Hwang-ti, 
about 2600 B.C. 



204 EVOLUTION OF GOVERNMENTS AND LAWS 

For early records of China, we look only to China. No 
neighboring nation can furnish us contemporary side lights. 
Of all the people of eastern Asia the Chinese first invented a 
written language and first became historians. Whether in 
authentic writings they antedate the Egyptians is a question 
on which archeologists may differ, but certain it is that their 
early histories are far more numerous and copious than those 
of any other people on earth. It is surmised by some, that 
the progenitors of the race migrated into China from the 
vicinity of the Caspian Sea, but the writer does not know on 
what evidence, for no ancient Chinese record is referred to 
as proving it, and there are no older or other records on 
the subject. 

The Chinese, like the Egyptians, were first found in the 
country they now inhabit. Their civilization has grown and 
continued to abide where it now exists. It has until very 
recent times received no marked impulse from without except 
the Buddhist religious teachings. No conquering horde has 
ever swept over the provinces of China and supplanted the 
ancient race with its own people. The Tartar conquest begun 
by Jenghiz Kahn and completed under Kublai, while bloody 
and destructive in the paths of the invading armies, failed to 
destroy or supplant the ancient stock. The subsequent Man- 
chu conquest was a change of rulers, but slightly affecting 
the great multitude. Throughout all ages China has been secure 
against outside foes, except such as entered from the North. 
The barren inaccessible heights of the Himalayas on the south 
have ever interposed an impassible barrier against invasion 
from that direction. The barren steppes of Thibet and Mon- 
golia could only be reached from the west after crossing the 
mountain ranges of central Asia. Only from the north has it 
been found practicable to lead in an invading army, and that 
cold and inhospitable country has not frequently poured out 
hosts of such magnitude as to overrun the densely peopled 
provinces of China, and never sufficient to drive out the people. 

Like all other people, in their accounts of the origin and 
early history of their race, the Chinese narrate what is evi- 
dently fabulous and imaginary. Records cannot antedate the 



CHINA 205 

art of making them, and traditions receive an accretion of 
the marvelous as they are passed down from generation to 
generation, till the real basis of truth is covered up and indis- 
cernible. The period of 2,267,000 + years, given by Chinese 
writers as having elapsed between the creation of man and 
the time of Confucius, is entitled to no more and no less 
credit than any other attempt at fixing the date of man's 
advent on earth. Nor could anything be more whimsical than 
an attempt to blend and harmonize authentic Chinese history 
with the Mosaic account of creation. 

The earliest accounts and traditions locate the Chinese along 
the Yellow River in and about the province of Shan-si, and 
while Chinese writers mention numerous long dynasties an- 
terior to his time, Fuh-hi appears to be about the first ruler 
whose existence at some date appears fairly certain. The 
date of his accession to the throne is variously estimated from 
2852 to 3322 B.C. He and his seven successors are said to 
have reigned 747 years, giving an average of 93^ years to 
each. While such periods are shorter than the lives of Bibli- 
cal patriarchs, they are equally improbable and afford no data 
for computing the time of events. To Tuh-hi is attributed 
the Yih-King, or Book of Changes, which stands at the head 
as the most ancient of the Five Classics. The work appears 
to us rather whimsical, being made up of essays on important 
themes, illustrated by a combination of whole and broken lines 
treated as different principles, placed one above the other in 
various orders, and which are regarded as symbolical of the 
subjects discussed. Perhaps, however, as symbols these linear 
combinations may have meant more to the Chinese than they 
do to us. 

The early reigns are sometimes spoken of as though the 
sovereign occupied the same relation to the people as in later 
years, yet it is said that the successors of Hwang-ti were 
elected by the people. The reign of Yao 2356 B.C. is taken 
as the starting point of authentic history. In his reign there 
was a great flood causing a permanent overflow of much land. 
This was remedied by works carried on under Yu, who after- 
ward succeeded to the throne. Little appears to be recorded 



206 EVOLUTION OF GOVERNMENTS AND LAWS 

concerning the condition of the people or the constitution of 
the government. The ruler is always treated as the subject 
of the theme and matters of real interest are mentioned only 
incidentally. It is evident, however, that in the earliest times 
of which any accounts are preserved, the Chinese tilled the 
soil, had domestic animals and wove. Yu established markets 
and fairs to accommodate trade. In his time the Empire is said 
to have extended from twenty-three to forty north latitude and 
six degrees west and ten degrees east from Peking; this in- 
cludes the greater part of China proper. The reigns of Shun 
and Yu have been immortalized by Confucius and possibly he 
has depicted their characters in accordance with what a ruler 
should be, rather than with what these rulers really were. 

From the time of Yu the throne became hereditary, but the 
system prevailing appears to have been similar to the feudal 
system of Europe in later times. If the character of the rule 
of Yu is correctly given in the answer of Kaogao, as given in 
the Shu King, he acted on most enlightened maxims. "Your 
virtue, O Emperor, is faultless. You condescend to your min- 
isters with a liberal ease, you rule the multitude with a gen- 
erous forebearance. Your punishments do not extend to the 
criminal's heirs, but your rewards reach to after generations. 
You pardon inadvertent faults however great, and punish de- 
liberate crime however small. In cases of doubtful crimes 
you deal with them lightly, of doubtful merit you prefer the 
highest estimate. Rather than put to death the guiltless, you 
will run the risk of irregularity and laxity. This life loving 
virtue has penetrated the minds of the people, and this is why 
they do not render themselves liable to be punished by your 
o ffi «rs." ■ ;%!tJll 

The historic accounts of the early rulers of China are essen- 
tially the same as those of monarchs everywhere who are 
subject to no efficient restraints. There were wise and able 
founders of dynasties, who ruled for the good of the people, 
followed by degenerate offspring who were dissolute, cruel 
and oppressive. No instance is recorded in history of a long 
succession of hereditary monarchs who have maintained a high 
standard either of capacity or virtue. It is hardly worth while 



CHINA 207 

at this time to moralize on the causes of the degeneracy of 
ruling houses. The fact that it invariably takes place is the 
matter of prime importance. 

The Shang dynasty founded 1766 B.C. ended 1122 B.C. 
and was followed by the Chau. The reign of its founder 
Wu Wang is looked to as a kind of golden age in Chinese 
history, yet he committed the blunder of dividing the empire 
into seventy-two petty feudal states, leaving himself only a 
small portion of territory and power. The number of these 
states was at one time as high as 125 and in the time of Con- 
fucius fifty-two. The effect of this division was unceasing 
internecine wars, which would have rendered the whole an 
easy prey to a powerful outside foe. In 936 B.C. the Tartars 
made their first incursions of which we have any account, 
which were continued from time to time thereafter. At the 
birth of Confucius 557 B.C. the empire was in this unhappy 
condition. Though the Chau dynasty covers a period of weak- 
ness in the central power and, as has always happened under a 
feudal system, of strife and bloodshed among feudatories, it 
yet endured longest of any in the history of the empire, cover- 
ing a period of 873 years down to 249 B.C. It was during 
this dynasty that those men appeared on earth who have ex- 
ercised such marked influence on Chinese thought, habits, cul- 
ture and society. Gautama, Confucius, Mencius and Lao Tze, 
have each left distinct and enduring imprints of their teach- 
ings. Gautama, deified as the incarnation of Buddha by his 
devotees, taught men to do good deeds and live pure lives in 
order that they might be happy in a future state of existence. 
Though a native of northern India, his disciples spread his 
doctrines into China in an early day, and his followers soon 
became very numerous and have so continued to the present 
time. 

Confucius was a teacher of earthly wisdom rather than the 
founder of a religious sect. He claimed no higher sanction 
for his doctrines than reason and the tests of experience. He 
sought to establish justice and promote the happiness of men 
on earth. One of the means to these ends was a strong gov- 
ernment honestly and faithfully administered. Another was 



208 EVOLUTION OF GOVERNMENTS AND LAWS 

education of the young in correct principles. In character 
he was much like Socrates, but more practical in his methods. 
He was not averse to assuming responsibility and putting his 
maxims into practical operation. Far more than any other 
man, he has moulded Chinese customs and character down 
to the present time. The antiquity of Chinese literature is 
well shown by the works of Confucius. His Shu King, or 
Book of History, consists of ancient public documents from 
the time of Yao 2356 B.C. to King Hiang 627 B.C. These 
include imperial ordinances, plans drawn up by ministers for 
the guidance of the emperor, imperial proclamations, vows 
of the monarch before Shang-ti when going out to battle, 
and mandates, announcements, speeches, etc. by ministers of 
state. These were edited by Confucius with his comments. 
Confucius gathered the learning of the past and inculcated 
the study of the wisdom of the ancients. He was far more 
a compiler than an author. Of the five classics, though all 
bear marks of his labors, only the Chun Tsiu or Spring and 
Autumn Record was originally written by him. The Shi 
King or Book of Odes is a collection of odes and songs origi- 
nally gathered from all the provinces by the emperor Wang 
Wau, numbering three thousand, most of which were lost 
however before the time of Confucius. These odes were 
used in connection with public and religious services. Only 
311 of them are now extant. 

Not the least important in its practical effect on after gen- 
erations is the Li-ki or Book of Rites. No other people are 
so fond of ceremony as the Chinese. How far back in an- 
tiquity this fondness extended we are not informed, but a 
ritual is attributed to Duke Chau, n 30 B.C., on which much 
that is observed at the present day appears to be founded. 
Though filled with ceremonial, the book of Rites also teaches 
the principles governing the conduct of members of the family 
toward each other, of citizens toward officials, of officials to- 
ward citizens and each other. No other of the classical books 
appears to have exercised so profound an influence on suc- 
ceeding generations. Not only has it established a vast multi- 
plicity of forms and ceremonies to be observed each day, but 



CHINA 209 

it has profoundly impressed on all generations its fundamen- 
tal principles, respect, amounting very nearly to religious ven- 
eration, for parents and rulers and politeness to everyone. 
With these classical books the name of Confucius is insepar- 
ably connected. Neither of them is a law book in the sense 
in which the term is used in the west, nor yet are they re- 
ligious compilations in a western sense, but many of the rules 
they contain are more generally obeyed than any act of Con- 
gress or Parliament, and many of the moral precepts they 
teach are oftener repeated, and as generally accepted, as any 
of the truths contained in the Bible are in Europe or America. 

The secret of the remarkable influence of these "Five 
Classics," as they are termed, seems to lie in their consonance 
with Chinese tastes and character. No other people have half 
the respect for what is ancient that they do. Though put in 
form by Confucius, the material was already in existence, 
and he professed merely to compile the wisdom of the past. 
The age in which Confucius lived was one of weakness in 
the central government and of war and contention among 
the inferior rulers. Robbers and maurauders appear to have 
been numerous. He sought to permanently remedy the evils 
resulting from these conditions. 

The Chau dynasty ended with the accession to the throne 
of Chwang-si-ong Wang. After but three days reign he 
died leaving the empire to his thirteen-year-old son Chi 
Hwangti. By the extermination of the imperial house he 
established his power, and by conquest of the petty states 
extended the boundaries of the empire to include most of 
China. He divided the country into thirty-six provinces over 
which he placed governors, whose conduct he supervised. 
From his time the essential features of the present govern- 
mental system seem to date. He finally overthrew the feudal 
system and firmly established the central power. Nor was 
he possessed of the spirit of reverence for the wisdom of the 
past which has since been so general. The title he assumed 
of First Emperor and his destruction of all records written 
anterior to his reign, evidence his vanity and desire to be 
regarded in history as the founder of the empire. He prob- 



210 EVOLUTION OF GOVERNMENTS AND LAWS 

ably was the first to rule all China. Although his order to 
burn all ancient writings was carried out and nearly 500 of 
the literati were burned alive to complete the infamy, not all 
the copies were found by the vandals and so much was pre- 
served in the memories of scholars, that the classics were again 
reproduced by the generation then living. The peculiar sys- 
tem of education then and now prevailing in China resulted 
in literal memorizing by the scholars of the texts of these 
works. Copies of some of the classics are also said to have 
been found more than a century later, concealed in the walls 
of Confucius' house. The destruction and reproduction of 
these works indicate the prevalence of education at the time. 

Though detached portions of the great wall along the north- 
ern border of the empire had been built by the states for their 
security against Tartar incursions, it was in the reign of 
Hwangti that the work of joining these together into one 
complete and continuous defense was undertaken, and suc- 
cessfully carried out soon after his death. No other evidence 
remains which so surely proves the vast extent of the empire 
and the numbers and industry of the people as this great 
work. The construction of a wall 1500 miles long, twenty- 
five feet thick at base and fifteen at top from fifteen to thirty 
in height, with detached towers at intervals, could not have 
been accomplished without the cooperation of a vast multi- 
tude of workers, within the period of ten years in which it 
was built. The pyramids of Egypt are diminutive in com- 
parison with this great structure. 

Chi Hwangti died 210 B.C. His weak and debauched son 
was unable to curb the turbulent leaders and was soon de- 
posed. After five years of civil war, Liu Pang overthrew his 
rival and was proclaimed emperor. This was followed by 
the Han dynasty which continued till A.D. 221. The founder, 
Liu Pang, is accredited with having instituted the system of 
competitive examinations for office, though by some authori- 
ties the perfection of the system in its present form is fixed 
at A.D. 600. His successor appointed a commission to restore 
as far as possible the texts of the literary works destroyed by 
order of Hwangti. A period of comparative peace and pros- 



CHINA 211 

perity followed, but about the beginning of the Christian era 
a rebellion broke out followed by disorders which resulted in 
the establishment of the eastern Han dynasty. A.D. 65 
Buddhism was introduced into China and about the same year 
an embassy was sent into Turkestan, soon followed by an 
acknowledgment of sovereignty of the emperor over Shen- 
Shen, Khotan, Kuche and Kashgar. Their allegiance, how- 
ever, soon fell off. 

A.D. 220-221-222 the empire was partitioned between three 
rival warriors into three kingdoms, the southern of which in- 
cluded modern Tonquin. This partition was followed by a 
long period of war and turmoil, during which power was 
wielded only by such as demonstrated their ability to maintain 
it. In 284 an embassy from the Roman Emperor Theodosius 
was sent into China. This appears to have been the first case 
of official intercourse between China and Europe. In 419 
the eastern Tsin dynasty came to an end and the empire stood 
divided between the northern and southern. Disorders con- 
tinued until 590 when Yang Keen established the Suy dynasty. 
He restored comparative peace and prosperity to the country, 
though he fought and defeated the Tartars and Coreans. He 
caused a survey to be made of his dominions and divided them 
into chau, kuen, and Men with corresponding officers, and this 
arrangement is still retained. At the close of his reign, which 
lasted sixteen years, one of his sons forced the heir to strangle 
himself and usurped the throne. He waged successful war 
against the Tartars and increased the imperial library to 
54,000 yolumes. The burdens he imposed on the people, in 
carrying on his wars and schemes of internal improvements, 
caused a rebellion which terminated in his assassination. 

In 617 the heir to the throne having been poisoned, Li Yuen, 
a great general, proclaimed himself emperor under the name 
of Tai-tsung, founder of the Tang dynasty. During his reign 
China was without doubt the most civilized and peaceful coun- 
try on earth. With the crumbling of the Roman Empire, 
Europe had settled into a period of ignorance and brutality 
from which it did not emerge for many centuries. Chang 
Kwan, the son and successor of Li Yuen, is spoken of as the 



212 EVOLUTION OF GOVERNMENTS AND LAWS 

most accomplished prince in Chinese history. He established 
schools and perfected the system of literary examinations. 
He ordered a complete edition to be published of the Classics, 
and paid special honors to the memory of Confucius. He 
promulgated a code for the direction of the judges. He had 
a just appreciation of the responsibilities and dangers of a 
sovereign and an anecdote is related that, when sailing on the 
river Wei, he said to his sons: "See, my children, the waver, 
which float our fragile bark are able to submerge it in an 
instant. Know assuredly that the people are like the waves, 
and the Emperor like the fragile bark." 

In his reign the boundaries of the empire were greatly ex- 
tended toward the west, including Kuche, Khoten, Khorasan, 
Kashgar and the Turkish tribes as far as the Caspian Sea, 
over each of which was placed a military governor. Ambas- 
sadors were sent to the imperial court from Persia and Rome. 
In 635 a Roman priest was received' and the emperor built 
him a church. On the death of Chang Kwan, posthumously 
styled Tai Tsung, and the accession of Kaou-tsung, his wife, 
Woo How, became the real master of the emperor and at the 
death of her husband she set aside the heir and seized the 
throne. She ruled with vigor and her armies were victorious. 
The usual round of vigor on the throne, followed by vice, 
external wars and internal rebellions, followed at last by a 
division of the empire into many petty warring states, filled 
out the balance of the Tang and five other brief dynasties suc- 
ceeding it. In 960 General Chaou Kwang-yin was proclaimed 
emperor by the army, which at that time seems to have held 
all power, as did the Praetorian guard at Rome in earlier times. 
In the tenth and eleventh centuries there were wars with the 
Tartars and Khitans, resulting at times in the payment of 
tribute by China to the Khitans. 

Abbe Hue relates that in the eleventh century under the 
Sung dynasty there were socialists in China and that there 
was much radical political discussion. At the head of the re- 
formers was Wangngan-Chi, a man of remarkable talents, 
great learning and energy. Instead of showing profound de- 
votion to the wisdom of the ancients, he attacked the existing 



CHINA 213 

order of things unsparingly. He charmed the emperor Chiu- 
tsoung with his brilliant presentation of his doctrines and 
gained great influence over him. In the sketch taken from 
the work of M. Abel Remusat his teachings are thus sum- 
marized : 

"The first and most essential duty of a government is to 
love the people and to procure them the real advantages of 
life, which are plenty and pleasure. To accomplish this ob- 
ject it would suffice to inspire everyone with the unvarying 
principles of rectitude, but, as all might not observe them, 
the state should explain the manner of following these pre- 
cepts, and enforce obedience by wise and inflexible laws. In 
order to prevent the oppression of man by man the state 
should take possession of all the resources of the empire and 
become the sole master and employer. The state should take 
the entire management of commerce, industry and agricul- 
ture, into its hands with the view of succoring the working 
classes and preventing their being ground to the dust by 
the rich." 

Tribunals were to be established to fix the prices of pro- 
visions and merchandise and taxes to be imposed exclusively 
on the rich for a certain number of years. Aged paupers and 
unemployed working men were to be relieved from the treas- 
ury. The state was to be the only proprietor of the land, 
which should be assigned to the farmers by public authorities, 
who should also distribute seed, to be returned after harvest. 
The leading opponent of these doctrines was Sse-ma-kouang, 
who employed modern arguments in opposition to these 
schemes. Wangngan-Chi was given full authority to put his 
reforms in operation and maintained his ascendency through- 
out the reign of Cheu-tsoung. He added his own commen- 
taries to the classical books, and reformed the examinations 
for literary grades to correspond with his own views. This 
brought down on him the hostility of the literati as well as 
of all the privileged classes, and on the death of the emperor 
he was deposed and his rival put in power. At the death of 
Sse-ma-Kouang great honors were done his memory. Later 
there was a revulsion of sentiment and his tomb was dese- 



214 EVOLUTION OF GOVERNMENTS AND LAWS 

crated and great honors were paid to the memory of Wang- 
ngan-Chi. While according to Hue Chinese historians record 
the ill success of these schemes, the institutions of China seem 
to bear some marks of his doctrines at this day as will appear 
more fully when we enter on a consideration of the existing 
system. On the other hand it is said that the reign of Chiu- 
tsoung, lasting forty-one years, is the brightest period of 
the dynasty. Certain it is that the discussion carried on at 
this time produced a profound impression on Chinese polity. 
. Between 1127 and 11 63 the Kins pushed their conquests 
till they overran the northern provinces of Chi-li, Shen-se, 
Shan-se and Ho-nan and even advanced to the Yang-tsze- 
Kiang. At this time the power of the Mongols was growing. 
The invasion of China under Jenghiz Kahn commenced in 
1 2 12. He first attacked the Kins and overran most of the 
country occupied by them. He was succeeded by his son 
Ogdai who completed the overthrow of the Kin dynasty. 
Among the Mongols codes of laws were unknown, but Ogdai 
found it necessary to promulgate a code and divide his new 
and populous dominions into ten departments. Ogdai was 
followed after two brief intervening reigns by Mangu, who 
extended his conquests to the south as far as Cochin China. 
On his death in 1259 he was succeeded by the illustrious Ku- 
blai, who completed the subjugation of the empire and ruled 
from the Yellow Sea to the Dnieper and from the Arctic al- 
most to the Strait of Malacca. This was the first foreign 
dynasty ever established over all China. 

The ambassadors sent by the Emperor Theodosius, A.D. 
284 do not seem to have given any extended report of what 
they saw in China. In the Arab "Chain of Chronicles" is 
contained an account of a visit to the Chinese court by Ibn- 
Vahab in the ninth century. The description of what he saw, 
though meager, corresponds with other accounts of the state 
of the empire at that time. To Marco Polo we are indebted 
for the first full and satisfactory account of China and its 
civilization. His visit was during the reign of Kublai, whose 
empire was then the most extensive ever established in Asia, 
so far as is known. His description of the court and life of 



CHINA 215 

Kublai exhibits a combination of the customs of the Tartar 
nomad and the ceremonious Chinese courtier. During De- 
cember, January and February, the emperor resided in the 
palace at Kambalu. This palace is described as a complete 
square, a mile on each side. This is but the outer wall and 
edifices; within are others affording accommodations of all 
sorts for the people and their stores of goods, etc. and gardens 
with game preserves, and fish ponds. The inner palace he 
says "is the greatest that ever was seen. The floor rises ten 
palms above the ground and the roof is exceedingly lofty. 
The walls of the chambers and stairs are all covered with 
gold and silver and adorned with pictures of dragons, horses 
and other races of animals. The hall is so spacious that 6,000 
can sit down to banquet, and the number of apartments is 
incredible. The roof is externally painted with red, blue, 
green and other colors and is so varnished that it shines like 
crystal and is seen to a great distance around. It is also very 
strong and durably built." 

The city is described as very large with broad, straight and 
regular streets inclosed by a wall with twelve gates at each 
of which 1,000 men kept guard. Around the city were twelve 
very populous suburbs containing many stately edifices. The 
guard of the great Kahn consisted of 12,000 horsemen. The 
festivals held on the Kahn's birthday and the beginning of the 
new year were celebrated with great magnificence and the 
making of presents. On the latter day the presents from those 
holding land and offices, he states, included vast quantities of 
gold, silver, precious stones and merchandise, 5,000 camels, 
100,000 white horses and 5,000 elephants, all of which were 
exhibited in a grand procession. For hunting he kept leop- 
ards, lynxes or stag-wolves and lions, as well as dogs. On 
his great hunts he was attended by two parties of 10,000 men 
each with 5,000 dogs. Besides these he had great numbers of 
gerfalcons, vultures and falcons for hunting. At the expira- 
tion of the three winter months, the great Kahn sallied forth 
with a vast retinue. At a place named Choccia he pitched his 
tents, 10,000 in number. That in which he held court was 
of sufficient size for 1,000 knights, but he resided in another. 



2i6 EVOLUTION OF GOVERNMENTS AND LAWS 

The inside of this was lined with the finest furs. No one 
was permitted to take game from March to October, nor to 
keep dogs or falcons within twenty days' journey from his 
residence. At Shandu in Tartary he had a very large palace, 
which he occupied while hunting in that region and as a resi- 
dence in June, July and August. The great number of horses, 
dogs and other animals and the custom of moving from place 
to place and dwelling in tents and movable palaces, accords 
with the inherited tastes and habits of the Tartar, while the 
elaborate ceremonials at the capital and elsewhere show the 
influence of Chinese customs on the Kahn. The description 
of the cities and country visited by Marco clearly shows how 
fully the great Chinese mass retained its habits,, manners and 
customs, and how little effect the Tartar conquest had on 
Chinese civilization throughout the empire. The Tartar 
hordes were able to overcome the Chinese armies, but the 
countless multitude of busy farmers, manufacturers and 
traders plodded along the same as before, using the old lan- 
guage, literature and customs. Marco describes separately 
thirty-five different cities. He devotes the most space to 
Kin-sai, modern Hang Chau, which he says was without doubt 
the largest city in the world. The magnificence of its streets, 
stone bridges, buildings, canal, lake, boats, markets and shops, 
as well as on the great multitude of people and endless quanti- 
ties of all the necessaries of life, he details at length. In all 
the cities he visited he was astonished at the numbers of 
people and the abundance of the provisions for their comfort. 
Peace and plenty were the rule through the empire, with but 
few exceptions. 

Marco's description of the system of government and of 
the laws is very incomplete. He says there were twelve very 
great barons, who held command over all things in the thirty- 
four provinces. They all resided in the city of Kambalu, 
managed all the provincial affairs according to their will and 
appointed the lords of the provinces. For every province 
there was an agent and a number of writers or notaries. The 
twelve barons, called scieng in the Tartar language, ordered 
the army to move wherever they willed, subject to the direc- 



CHINA 217 

tion of the great Kahn. These are probably the same officers 
he refers to as a council of twelve persons, having power to 
dispose of the lands, governments and all things belonging 
to the state, though not necessarily so. That arbitrary power 
was exercised by the Kahn and his chief officers on occasion 
is clearly manifest from the account he gives of the corruption 
and oppression exercised by a Saracen named Achmac. He 
gained so great influence over the Kahn that no one dared to 
oppose him. "Any charged by him with a capital offence, 
whatever means he might employ to justify himself and 
refute the accusation, could not find an advocate, for none 
dared to oppose the purpose of Achmac. Thus he unjustly 
caused the death of many, and was also enabled to indulge 
his unlawful propensities. Whenever he saw a woman who 
pleased him, he contrived either to add her to the number of 
his wives or to lead her into a criminal intimacy." This sway 
continued twenty-two years. Finally the Kataians formed a 
plot against him and killed him in the palace. For this the 
ringleaders were summarily executed. On the return of 
Kublai, who was absent from Kambalu at the time, he in- 
quired into the cause of the trouble and, finding Achmac's 
seven sons equally guilty with their father, who had conferred 
high offices on them, he caused them to be flayed alive. 

The facilities for communication with remote provinces 
were exceptionally fine. Great routes were established along 
which, at intervals of from twenty-five to forty miles, com- 
modious inns, well provided with comforts, were established, 
in connection with which horses in great abundance were 
constantly kept. Public officials and messengers were lodged 
at these inns and furnished relays of horses. Of these inns 
there were more than 10,000 and of horses kept in connection 
with them more than 200,000. At intervals between these 
stations were others of foot runners, three miles apart, who 
carried letters and packages from station to station at the 
rate of 100 miles a day, while horsemen made from 200 to 
300 miles in twenty-four hours. Similar inns and couriers 
on foot and on horseback are still maintained in some parts. 
The paternal care of the great Kahn over his people Marco 
praises in this language. 



218 EVOLUTION OF GOVERNMENTS AND LAWS 

"He sends his messengers through all his kingdoms and 
provinces, to know if any of his subjects have had their crops 
injured through bad weather or any other disaster, and if such 
injury has happened he does not exact from them any tribute 
for the season or year, nay he gives them corn out of his own 
stores to subsist upon and to sow their fields. This he does in 
summer, in winter he inquires if there has been a mortality 
among the cattle and in that case grants similar exemption 
and aid. When there is a great abundance of grain he causes 
magazines to be formed, to contain wheat, rice, millet or 
barley, and care to be taken that it be not lost or spoiled : then 
when a scarcity occurs this grain is drawn forth and sold for 
a third or fourth of the current price." The monetary sys- 
tem Marco thus describes, 

"With regard to the money of Kambalu, the great Kahn 
may be called a perfect alchymist, for he makes it himself. 
He orders people to collect the bark of a certain tree whose 
leaves are eaten by the worms that spin silk. The thin rind, 
between the bark and the interior wood, is taken and from it 
cards are formed like those of paper, all black. He then 
causes them to be cut in pieces and each is declared worth 
respectively half a livre, a whole one, a silver grosso of Venice 
and so on to the value of ten bezants. All these cards are 
stamped with his seal, and so many are fabricated that they 
would buy all the treasuries in the world. He makes all his 
payments in them and circulates them through the kingdom 
and provinces over which he holds dominion, and none dares 
to refuse them under pain of death. All the nations under 
his sway receive and pay this money for their merchandise, 
gold, silver, precious stones and whatever they transport, 
buy or sell. The merchants often bring to him goods worth 
400,000 bezants and he pays them all in these cards, which 
they willingly accept, because they can make purchases with 
them throughout the whole empire. He frequently commands 
those who have gold, silver, cloths of silk and gold, or other 
precious commodities to bring them to him. Then he calls 
twelve men skillful in these matters, and commands them to 
look at the articles and fix their price. Whatever they name 



CHINA 219 

is paid in these cards, which the merchant cordially receives. 
In this manner the great sire possesses all the gold, silver, 
pearls and precious stones in his dominions. When any of 
the cards are torn or spoiled the owner carries them to the 
place where they were issued and receives fresh ones with a 
deduction of three per cent. If a man wishes gold or silver 
to make plate, girdles or other ornaments, he goes to the office, 
carrying a sufficient number of cards, and gives them in pay- 
ment for the quantity which he requires. This is the reason 
why the great Kahn has more treasure than any other lord 
in the world, nay all the princes in the world together have 
not an equal amount." This currency went out of use on the 
expulsion of the Mongols. The new dynasty issued notes at 
first but discontinued them about 1455. 

Kublai was tolerant of all religions and employed Saracens, 
Christians and Buddhists as well as idolators of all kinds and 
unbelievers. His domestic establishment was on a grand scale. 
He had four wives, each of whom ranked as an empress and 
had 300 maidens with eunuchs and other attendants. Besides 
these he had his concubines. By his wives he had twenty- 
two sons and by his concubines twenty-five. How many 
daughters is not stated. Marco speaks of the manufacture 
of beautiful porcelain, describes how all the people burn black 
stones instead of wood, and drink wine made from rice and 
many good spices. In Kin-sai each householder had written 
on his door the name of all the members of his household, 
which he revised when a birth or death occurred. This is 
still required. What most impressed Marco was the peace, 
good order, abundance of wealth and patient industry of the 
people. He also highly praises the integrity of the merchants 
of Kin-sai. Perhaps the most lasting monument to the energy 
and public policy of Kublai is the grand canal which he ex- 
tended and greatly improved. 

After the death of the great Kahn the Mongol dynasty was 
continued under Timur, his grandson, and Wu Tsung. Ching 
Tsung last of the line came to the throne at thirteen, a weak 
debauchee. Hung Wu, a plebeian and former Buddhist priest, 
headed a revolt, which resulted in the expulsion of the M011- 



220 



EVOLUTION OF GOVERNMENTS AND LAWS 



gols and his elevation to the throne as the founder of the 
Ming Dynasty. He established his capital at Nanking and 
reigned thirty years. He named his grandson as his succes- 
sor, but his son Yung-loh after five years seized the crown 
and moved the capital back to Peking in 1403. He promul- 
gated a code of laws, framed under his direction, which is the 
basis of the existing system of today. In 161 6 the Manchu 
Tartars invaded China and defeated the force sent against 
them. Rebellions followed in the provinces, by taking ad- 
vantage of which and judiciously combining with one or other 
of the factions, the Manchus finally gained complete ascend- 
ency and in 1644 Shun-che was proclaimed emperor and foun- 
der of the Tsing dynasty, which continued in power till the 
revolution of 1912. The whole empire was not reduced at 
once, but by a policy combining vigor in war with humane 
treatment of those who submitted, all opposition to the new 
dynasty was gradually overcome. 

A strange exhibition of power was that by which the people 
were required to adopt the Tartar mode of shaving the front 
of the head and braiding the hair in a long cue. To introduce 
and enforce a fashion by command even of a despot, is some- 
thing rarely attempted and much more rarely enforced and 
maintained. This mode of wearing the hair, now a distinctive 
mark of the Chinaman, thus appears to be a Manchu fashion 
forcibly imposed on the Chinese. It is said that many pre- 
ferred to lose their heads rather than submit to this badge 
of subjection. 

Kang-hi, son and successor of Shun-che, ascended the im- 
perial throne in 1661 when only eight years old. He was a 
contemporary of Louis XIV, who became sovereign of France 
the same year. The reign of Kang-hi was long and illustrious, 
lasting sixty-one years. He extended the boundaries of the 
empire and devoted his energies with indefatigable diligence 
to the improvement of the system of government. His son 
Yung-ching succeeded him in 1722 and ruled sixteen years 
with great satisfaction to his subjects. He was succeeded by 
Kien-hung his son who ruled mainly in peace for sixty years. 
In his reign intercourse with western nations was established 



CHINA 221 

and embassies were received from Russia, England and 
Holland. 

The first three Manchu sovereigns thus ruled the empire 
with prudence and vigor for one hundred and thirty-five years, 
with few wars either at home or abroad, and none seriously 
threatening the integrity of the empire. Subsequent reigns 
have been less fortunate and rebellions and foreign wars 
have become more frequent. The government during the 
last century has been, for the most part, without vigor, and 
the universal law which ultimately brings ruin on every 
hereditary dynasty has just brought this to the end. The 
decay of despotic power does not necessarily indicate retro- 
gression on the part of the nation but is often, nay usually, 
the forerunner of distinct advancement. Weakness on the 
part of the government always induces disorders, but these 
are often prompted by a desire for better conditions. In 
spite of all the vices and imperfections of its rulers, the pecul- 
iar civilization of the Chinese has been preserved and the 
almost incredible number of its people has continued to in- 
crease. The accounts of the military operations of its rulers 
and of rebel leaders, are calculated to convey erroneous im- 
pressions as to the military qualities and army service of the 
people in general. In western countries great wars have 
usually called out a very large proportion of the whole number 
of males of military age. Not so in China. The greatest 
army ever raised in the whole empire probably never exceeded 
one out of a hundred of the whole population. During the 
greatest wars and the most serious rebellions, trade, agri- 
culture and manufacture, except in the immediate locality of 
the strife, have gone on without very serious interruption. 
Thus the character of the Chinese people and of Chinese 
civilization has been essentially unmilitary ever since the con- 
solidation of the vast empire. 

All authorities agree that the fundamental idea of the 
Chinese government was patriarchal. The emperor was re- 
garded on the one hand as the son of Heaven, deriving his 
power directly from the Supreme Being, and on the other, as 
the father and mother of the people, responsible for their 



222 EVOLUTION OF GOVERNMENTS AND LAWS 

conduct as well as their welfare. He was the supreme legisla- 
tive, judicial and executive power. The theory of the origin 
of his power is not essentially different from that of other 
monarchs who rule by right divine. The Chinese, however, 
ingrafted a very important qualification on the doctrine. So 
long as the emperor ruled well, he was under the immediate 
protection of Heaven, but when he did ill it was an indication 
that the favor of Heaven had been withdrawn from him. The 
attributes of the princely man, taught in the classics as the 
words of Confucius, are much more lofty than can often be 
found on a throne. In the "Invariable Centre" it is said : 

"It is only the man supremely holy, who by the faculty of 
knowing thoroughly and comprehending perfectly the primi- 
tive laws of living beings, is worthy of possessing supreme 
authority and commanding men, who by possessing a soul 
grand, firm, constant and imperturbable is capable of making 
justice and equity reign — who by his faculty of being always 
honest, simple, upright, grave and just, is capable of attract- 
ing respect and veneration — who by his faculty of being 
clothed with the ornaments of the mind and talents procured 
by assiduous study and by the enlightenment that is given by 
an exact investigation of the most hidden things and the most 
subtle principles, is capable of discerning with accuracy the 
true from the false and good from evil." 

Mencius, who stands second only to Confucius in the esti- 
mation of the learned Chinese, said, 

"When the prince is guilty of great errors the minister 
should reprove him: if after doing so again and again he 
does not listen, he ought to dethrone him and put another in 
his place." 

In the Ta-hio or Grand Study the leading principles of 
government are thus stated by Confucius, 

"The ancient princes who desired to develop in their states 
the luminous principle of reason that we have received from 
Heaven, endeavored first to govern well their kingdoms ; those 
who desired to govern well their kingdoms, endeavored first 
to keep good order in their families; those who desired to 
keep good order in their families endeavored first to correct 



CHINA 227, 

themselves, those who desired to correct themselves endeav- 
ored first to give uprightness to their souls, those who desired 
to give uprightness to their souls endeavored first to render 
their intentions pure and sincere, those who desired to render 
their intentions pure and sincere endeavored to perfect as much 
as possible their moral knowledge and examine thoroughly 
their principles of action." 

"All men the most elevated in rank as well as the most 
humble and obscure are equally bound to perform their duty. 
The correction and amelioration of one's self, or self-im- 
provement is the basis of all progress, and of all moral de- 
velopment." Where is there anything better than this in any 
language? The Grand Study concludes, 

"If those who govern states only think of amassing riches 
for their personal use, they will infallibly attract toward them 
depraved men. These depraved men will make the sovereign 
believe that they are good and virtuous, and these depraved 
men will govern the kingdom. But the administration of the 
unworthy ministers call down the chastisement of Heaven 
and excite the vengeance of the people. When matters have 
reached this point what ministers, were they ever so good 
and virtuous, could avert misfortune? Therefore those who 
govern kingdoms ought never to make their private fortune 
out of the public revenues, but their only riches should be 
justice and equity." 

As the teachings of Christ have failed to make all of his 
professed followers in the west live according to the golden 
rule, so also the teachings of Confucius, studied in every 
school in the empire, and a profound knowledge of which is 
a prerequisite to appointment to office, have yet failed to 
make ideal rulers of men corrupt by nature, yet that his 
doctrines have wielded a powerful influence for good cannot 
be doubted. The recognition of the classical books as author- 
ity on moral and political questions operated as a limitation 
on the despotic powers of the emperor in much the same 
way that the unwritten British constitution limits the power 
of the king, lords and commons. The vast and complicated 
machinery of a government, ruling so many millions of peo- 



224 EVOLUTION OF GOVERNMENTS AND LAWS 

pie, also necessitated system and order, which could not be 
maintained under a government responding solely to the 
arbitrary will of a despot. The checks and balances of the 
system, though designed mainly to restrain subordinate offi- 
cers within the legitimate bounds of their authority, operated 
also to limit the powers of the emperor, in whom theoretically 
all power was vested. 

Under the Manchu dynasty the succession to the throne 
was hereditary in the male line. The particular person was 
designated by the sovereign, but kept concealed until after his 
death. The person designated ceased to be known by his 
personal name from the time of his accession to the throne 
and was given a new name which is rather the name of his 
reign than of himself. The deceased emperor was given a 
posthumous name by which he is known in history. When 
by revolutions a new dynasty was established, it received a 
name which is continued till a new family accedes to power. 

The imperial clan consisted of two classes. First the 
Tsung-shih, lineal descendants of Tien-Mings' father, Hien- 
tsu, who assumed the title of the emperor in 1616. Second the 
collateral branches including the children of his uncles and 
brothers who were collectively called Gioro. In the Tsung- 
shih there were twelve degrees of rank. They were for the 
most part shut out from useful employments and received 
small allowancs. The titular nobility of the empire were not 
a rich and powerful body, but without power, land, wealth, 
or influence. The near kinsmen of the emperor received 
liberal allowances, while the lowest orders were given mere 
pittances. The imperial clan governed Manchuria and indi- 
viduals were given such appointments in the empire as the 
emperor saw fit. Besides these there were five ancient orders 
of nobility, the titles of which cannot be accurately trans- 
lated. The descendants of Confucius received especial honor. 

The government of the Imperial court was under the gen- 
eral supervision of a board styled the Nui-wu-fu composed of 
a president and six assessors under whom were seven subordi- 
nate departments. These officers attended the emperor and 
empress at sacrifice and oversaw the households of the em- 



CHINA 225 

peror's sons, as well as directed the care and supplies of the 
palace and imperial guard. The seven departments had duties 
distributed as follows : to one the supply of food and raiment, 
to the second, regulation of the emperor's body guard, the 
third regulated domestic etiquette and brought the inmates 
of the harem, led by the empress, to do homage to the em- 
peror, the fourth selected ladies to fill the harem and collected 
the revenue from crown lands, the fifth attended to repairs 
of the palace and cleaning of the city streets for the use of 
the royal family, the sixth had charge of the emperor's herds 
and flocks and the seventh was a court for the punishment of 
crimes in and about the palace. The work of the imperial 
household was performed by about 2,000 eunuchs. There was 
but one empress, but the emperor was entitled to seven legal 
concubines and actually kept as many illegal ones as he pleased. 
Every third year he looked over the Manchu daughters and 
chose such as he liked for concubines. They were restored 
to liberty at twenty-five, unless they had borne children to 
the emperor. 

The empress dowager was the most important subject in 
the palace and was paid special honor by the emperor. The 
government of the empire was carried on through the instru- 
mentality of a very complex official system. First and closest 
to the emperor were two councils, the Nui-Koh or cabinet 
which consists of four principals and two assistants, half 
Manchus and half Chinese. Their duties were to ''deliberate 
on the government of the empire, proclaim abroad the im- 
perial pleasure, regulate the canons of state, together with 
the whole administration of the great balance of power, thus 
aiding the emperor in directing the affairs of state." 

Subordinate to these were six grades of officers numbering 
in all over 200, more than half Manchus. Under the six chan- 
cellors were ten assistants and some of these were constantly 
absent in the provinces. The principal business of this cabi- 
net was to receive imperial edicts and rescripts, present mem- 
orials, lay before the emperor the affairs of the empire, 
procure his instructions thereon and forward them to the 
proper office to be copied and promulgated. The papers in 



226 EVOLUTION OF GOVERNMENTS AND LAWS 

matters for consideration were arranged and slips of sug- 
gested answers were attached when they were presented to 
the emperor for his decision. Daylight in the morning was 
the hour for commencing his work. Each document was first 
read by one of the Manchu hioh-sz, who then handed it to a 
Chinese hioh-sz who passed it to the emperor. By a stroke 
of the vermilion pencil he indicated the answer to be made. 
Appointments to office, removals, degradations, orders relat- 
ing to taxes, the army, the provinces, etc., were thus rapidly 
made. 

The members of this cabinet separately also had other 
duties to perform in connection with bureaus to which they 
were attached and in presiding on state occasions. They 
were also keepers of the twenty-five great seals of the gov- 
ernment, each of which was of special design and for par- 
ticular uses. Subordinate officers attached to the cabinet 
translated documents into the various languages found in the 
empire. 

The Kinn-ki-Chu, council of state, was organized about 
T730 and was for a time the most influential body under the 
emperor. The numbers of this council, usually about four, 
varied at the pleasure of the emperor by whom they were se- 
lected. Its duties were "to write imperial edicts and decisions, 
and determine such things as are of importance to the army 
and nation in order to aid the sovereign in regulating the 
machinery of affairs." They assembled in the palace between 
five and six in the morning. The emperor's commands were 
written down by them and, if public, transmitted to the inner 
council to be promulgated, but, if the matter required secrecy 
or haste, a dispatch was forthwith made up and sent to the 
Board of War to be forwarded. In all important trials or 
consultations, this council was called in and acted either sepa- 
rately or in connection with the appropriate court. Lists of 
officers entitled to promotion were kept by it and names to 
fill vacancies furnished the emperor. 

The duties of these supreme councils were general, covered 
all departments of the government and served to connect the 
head of the empire with all subordinate bodies at the capital 



CHINA 227 

and in the provinces. Under such a system, very much de- 
pended on the personal character of the emperor. The King 
Poo commonly called the Peking Gazette was compiled from 
the papers presented before the General Council. Every 
morning ample extracts from the papers decided upon by the 
emperor, including orders and rescripts, were placarded on 
boards in a court of the palace. Couriers were dispatched to 
all parts of the country with copies of these papers for local 
officials. Certain persons were also permitted to print these 
documents, but without comment or change, and circulate 
them to their customers. This was the Gazette and was simply 
a record of official acts. It was very generally read by edu- 
cated people and kept them informed of the proceedings of 
the government. In the provinces, abridged editions were 
made for readers not able to take the complete one. 

Under these two principal councils were the Luh-Pu or six 
boards, of ancient origin. At the head of each board were 
two presidents and four vice-presidents alternately Manchus 
and Chinese, and over those of Revenue, War and Punish- 
ments were also superintendents who were frequently mem- 
bers of the Cabinet. Sometimes the president of one board 
was superintendent of another. There were three subordinate 
grades of officers in each board and a great number of clerks 
for details. The organization of the departments was very 
complete and systematic. 

( 1 ) The Li Pu or Board of Civil Office, "has the govern- 
ment and direction of all the various officers in the civil ser- 
vice of the empire and thereby it assists the emperor to rule 
all the people" and their duties included "whatever appertains 
to the plans of selecting rank and gradation, to the rules de- 
termining degradation and promotion, to the ordinances grant- 
ing investures and rewards, and the laws for fixing schedules 
and furloughs that the civil service may be supplied." Civil- 
ians were presented to the emperor and all civil and literary 
offices were distributed by it, but the cabinet and General 
Council had advisory oversight of the high appointments. 
The board was divided into four bureaus. The first attended 
to distinctions, promotions and exchange of offices. The sec- 



228 EVOLUTION OF GOVERNMENTS AND LAWS 

ond investigated the merits and demerits of officers and their 
worthiness to be advanced or degraded and prescribed fur- 
loughs. The third regulated retirements from office for 
mourning or filial duties, and supervised the registration of 
official names. The fourth regulated the distribution of titles, 
patents and posthumous honors. Posthumous honors were 
highly regarded by the Chinese and theirs was the only gov- 
ernment that ennobled dead ancestors for the merits of their 
descendants. While nominal titles for the living might be 
bought, the dead received honor only on the basis of their 
own merits or those of their offspring. 

(2) The Hu Pu or Board of Revenue, "directs the terri- 
torial government of the empire and keeps the lists of popu- 
lation in order to aid the emperor in nourishing all the people ; 
whatever appertains to the regulations for levying and col- 
lecting duties and taxes, to the plans for distributing salaries 
and allowances, to the rates for receipts and disbursements 
at the granaries and treasuries and to the rights for trans- 
porting by land and water, are reported to this board, that 
sufficient supplies for the country may be provided." It also 
obtains the measurement of all lands in the empire, and ap- 
portions taxes and conscriptions according to population, etc. 
One minor office of this board- prepared lists of all Manchu 
girls fit for selection as inmates of the imperial harem. There 
were fourteen subordinate departments to attend to the re- 
ceipt of the revenue from each of the provinces, each of which 
corresponded with the treasury department in its respective 
province. Some of the revenue was paid in money, some in 
grain and merchandise and this required a vast force to 
handle it. This board was also a court of appeals on certain 
cases respecting property and superintended the mint in each 
province. 

(3) The Board of Rites, "examines and directs con- 
cerning the performance of the five kinds of ritual observ- 
ances and makes proclamations thereof to the whole empire, 
thus aiding the emperor in guiding all people. Whatever 
appertains to the ordinances for regulating precedence and 
literary distinctions, to the canons for maintaining religious 



CHINA 229 

honor and fidelity, to the orders respecting intercourse and 
tribute and to the forms of giving banquets and granting 
bounties, are reported to this board in order to promote 
national education." The five classes of rites were defined to 
be, those of a propitious and those of a felicitous nature, mil- 
itary and hospitable rites and those of an infilicitous nature. 
A subordinate department of this bureau regulated the eti- 
quette to be observed at court on all occasions and in the per- 
formance of official duties, also styles of dress, caps, etc., the 
figure, size, color and nature of the fabrics and ornaments 
worn, carriages and accoutrements and number of followers 
and insignia of rank of those taking part in public affairs. 
It also regulated the ceremonial of personal intercourse be- 
tween persons of the various ranks, minutely defining the 
number of bows and degree of attention which each should 
pay to the other when meeting officially. It also directed the 
form of official correspondence and regulated the literary ex- 
aminations, number of graduates, distinction of classes, forms 
of selection and privilege of successful candidates and the 
establishment of government schools. Another office super- 
intended the religious rites to be observed. A third called 
"host and guest" office looked after tribute and tribute bearers 
and attended to foreign embassies, supplied provisions and 
interpreters and regulated the mode of intercourse with for- 
eign states. The fourth supplied the food for banquets. The 
details of the duties of this Board filled fourteen volumes of 
the Statutes. The ancient Book of Rites is the foundation of 
ceremonies and the standard to be followed. Confucius said 
"Truly nothing is without its ceremonies" and careful ob- 
servance of the rites is regarded by the Chinese as the certain 
test of refinement and gentility. Connected with this board 
was a Board of Music, whose duties were to study the princi- 
ples of harmony and melody, to compose musical pieces and 
form musical instruments and suit them to the various occas- 
ions where they were required. Official music, however, was 
not highly regarded by foreigners. 

(4) The Ping Pu or Board of War "has the duty of aid- 
ing the sovereign to protect the people by the direction of all 



230 EVOLUTION OF GOVERNMENTS AND LAWS 

military affairs in the metropolis and provinces and to regu- 
late the hinge of the state upon the reports received from the 
various departments regarding deprivation of, or appointment 
to Office, succession to, or creation of hereditary military 
rank: postal or courier arrangements, examination and se- 
lection of the deserving and accuracy of returns." The navy 
was also under this Board. The management of the post 
was under a special department and dispatches were trans- 
mitted by an efficient system. The board of war discharged 
its duties through four bureaus. It had no control over the 
household or city troops, nor of the Bannermen distributed 
throughout the empire. 

(5) The Hing Pu or Board of Punishments, "has the gov- 
ernment and direction of punishments throughout the empire 
for the purpose of aiding the sovereign in correcting all 
people. Whatever appertains to measures of applying the 
laws with leniency or severity, to the task of hearing evidence 
and giving decisions, to the right of granting pardons, re- 
prieves or otherwise and to the rate of fines and interest are 
all reported to this Board, to aid in giving dignity to national 
manners." This Board had both civil and criminal jurisdic- 
tion. Its officers met with those of the Censor ate and Tali Sz 
and the three formed the San Foh Sz, or Three Law Cham- 
bers, which decided on capital cases brought before them. In 
the autumn, these three united with members from six other 
courts, forming collectively a Court of Errors to review the 
decisions of provincial judges before reporting them to the 
emperor. They were required to conform their decisions to 
the laws and were not vested with any arbitrary powers. Sub- 
ordinates of this Board recorded the emperor's decisions on 
appeals from the provinces at the autumnal sitting, when the 
entire list was presented for the emperor's final decision, and 
saw that these sentences were transmitted to the provincial 
judges. Another office superintended the publication of the 
code, with all the changes and additions. A third oversaw 
jails and jailers. A fourth received fines taken in commu- 
tation of punishment, and a fifth registered receipts and 
expenditures. 



CHINA 231 

(6) The Kung Pu or Board of Works, "has the govern- 
ment and direction of the public works throughout the em- 
pire, together with the current expenses of the same, for the 
purpose of aiding the emperor to keep all the people in a 
state of repose. Whatever appertains to plans for buildings 
of wood or earth, to the forms of useful instruments, to the 
laws for stopping up or opening channels, and to the ordi- 
nances for constructing the mausolea and temples, are re- 
ported to this Board in order to perfect national works." 
The work of the bureaus in this department presents a singu- 
lar combination of duties. One bureau supervised the con- 
dition of city walls, palaces, temples, altars and other public 
structures, sat as a prize office, furnished tents for the em- 
peror's journeys, supplied timber for ships, and pottery and 
glassware for the court. Another attended to the manufac- 
ture of military stores and utensils used by the army, sorted 
the pearls from the fisheries, regulated weights and measures, 
furnished death warrants to governors and generals, and 
had charge of arsenals, stores, camp equipage and other things 
appertaining to the army. A third had charge of all water 
ways and dikes, repaired and dug canals, erected bridges, 
oversaw the banks of rivers by deputies stationed along their 
courses, built vessels of war, . collected tolls, mended roads, 
dug sewers in Peking and cleaned out its gutters, preserved 
ice, made bookcases for public records and looked after the 
silks collected as taxes. The fourth attended chiefly to the 
condition of the imperial mausolea, the erection of the sepul- 
chers and tablets of meritorious officers, buried at public ex- 
pense, and the adornment of temples and palaces, and 
superintended all workmen employed by the Board. The 
mint was under the direction of two of the vice-presidents 
and the manufacture of gun powder was intrusted to two 
ministers. 

The Li Fan Yuen commonly called the Colonial Office had 
the government and direction of the external foreigners, 
ordered their emoluments and honors, appointed their visits 
to court and regulated their punishments, in order to display 
the majesty and goodness of the state. This branch of gov- 



232 EVOLUTION OF GOVERNMENTS AND LAWS 

ernment superintended all the tribes of Mongolia, Cobdo, Hi 
and Koko-nor. These are called "external foreigners," to 
distinguish them from the tribes of Sz-chuen and Formosa 
who are termed "internal foreigners." There are also the 
''internal barbarians, comprising the unsubdued mountaineers 
of Kweichan, and the "external barbarians" including the 
people of all foreign countries. The Colonial Office regulated 
the government of the nomads and restricted their wander- 
ings. Its officers were all Manchus and Mongols. Besides 
the usual secretaries there were six departments. The first 
two had jurisdiction over the minor tribes of Mongolia, ap- 
pointed the local officers, collected taxes, allotted lands to 
Chinese settlers, opened roads, paid salaries, arranged mar- 
riage retinues, visits to court, presents made by the princes 
and review of the troops. The third and fourth had similar 
but less effectual control over the princes, lamas and tribes 
of outer Mongolia. The fifth department directed the ac- 
tions, restrained the powers, levied the taxes and ordered 
the tributary visits of the Mohammedan begs in the Thian- 
shan, Nan Lu. The sixth regulated the penal discipline of 
the tributary tribes. Salaries were paid the Mongolian 
princes according to an established scale. A tsin wang re- 
ceived $2,600 and twenty-five pieces of silk per year, a Kinn- 
wang $1,666 and fifteen pieces of silk and so down to the 
lowest in rank who got $133 and four pieces of silk. The 
organization of these nomadic tribes partakes of both the 
feudal and tribal system. The Chinese policy was to reduce 
the power of the chiefs and make the people independent 
owners and cultivators of the soil. 

The Tu-chah Yuen or Censorate, "All examining Court" 
was entrusted with the "care of manners and customs, the in- 
vestigation of all public offices within and without the capital, 
the discrimination between the good and bad performance of 
their business, and between the depravity and uprightness of 
the officers employed in them; taking the lead of other cen- 
sors and uttering each his sentiments and reproofs, in order 
to cause officers to be diligent in attention to their daily duties 
and to render the government of the empire stable." 



CHINA 233 

The Censorate when joined with the Board of Punish- 
ments, and Court of Appeals, formed a high court for the 
revision of criminal cases and appeals from the provinces; 
and in connection with the Six Boards and the court of 
Representation and Appeal, made one of the Kin King or 
"Nine Courts" which deliberated on important affairs of 
state. The officers were two censors and four deputy cen- 
sors, besides whom the governors, lieutenant governors and 
governors of rivers and inland navigation were ex-officio 
deputy censors. A class of censors was placed over each of 
the Six Boards whose duties were to supervise all their acts, 
to receive all public documents from the Cabinet and, after 
classifying them, transmit them to the several courts to which 
they belonged, and to make a semi-monthly examination of 
the papers entered on the archives of each court. All crimi- 
nal cases in the provinces were under the oversight of the 
censors at the capital, and also the department which super- 
intended the affairs of the metropolis, revised its municipal 
acts, settled the quarrels, and repressed the crimes of its in- 
habitants. Theoretically the Censors had the right and rested 
under the duty of expressing their opinions and criticising 
all official dereliction coming under their observation, from 
the emperor down, but to do so required exceptional courage 
and uprightness, seldom found among politicians anywhere 
and especially rare under a despotism. Instances of righteous 
and fearless performance of this duty are not wanting how- 
ever. Sung, a censor, sent in a memorial remonstrating with 
the Emperor Kiaking upon his attachment to play actors and 
strong drink, which degraded him in the eyes of the people 
and disabled him from performing his duties. The Emperor 
highly irritated called him to his presence and on his con- 
fessing the authorship of the memorial asked him what pun- 
ishment he deserved. He answered "quartering" ; being told 
to select some other he said "Let me be beheaded" and on the 
third command chose to be strangled. He was ordered to 
retire and the next day the Emperor appointed him governor 
of Hi, thus removing him from the capital. Another censor, 
during the Tang dynasty, when the emperor desired to in- 



234 EVOLUTION OF GOVERNMENTS AND LAWS 

spect the archives of the historical office to learn what had 
been recorded concerning him, under the excuse that he 
wanted to know his faults so that he might correct them, 
answered "It is true your Majesty has committed a number 
of errors, and it has been the painful duty of our employment 
to take notice of them; a duty which further obliges us to 
inform posterity of the conversation which your Majesty has 
this day very improperly held with us." The usual mode of 
advising the Emperor was by a written remonstrance or 
memorial. Many of these were inserted in ^he Peking Gaz- 
ette for public information. The Tung-ching Sz, or Court 
of Transmission, consisted of six officers, who received me- 
morials from the provincial authorities and appeals from their 
judgments by the people, which they presented to the Cabinet. 
Attached to this court was an office for attending at the 
palace gate, to await the beating of a drum, which, according 
to ancient custom, was placed there that suitors by striking it 
might obtain a hearing. This was also the channel through 
which the people could appeal directly to the Emperor, and 
instances occur where men and women traveled from remote 
provinces to present their petitions to the "one man." 

The Ta-li Sz or Court of Judicature and Revision had the 
duty of supervising all the criminal courts in the empire and 
formed the nearest approach to a Supreme Court of any in 
the government. When the crime involved life, this and the 
preceding united with the censors to form one court, and if 
the judges were not unanimous in their decisions they must 
report their reasons to the Emperor to decide the case. The 
Hanlin Yuen or Imperial Academy was entrusted "with the 
duty of drawing up governmental documents, histories and 
other works; its chief officers take the lead of the various 
classes, and excite their exertions to advance in learning in 
order to prepare them for employments and fit them for 
attending upon the sovereign." Its chief officers were two 
presidents or senior members who attended on the Emperor, 
superintended the studies of graduates and furnished semi- 
annual lists of persons to be speakers at the celestial feasts, 
where the essays of the Emperor were translated from or 



CHINA 235 

into Manchu and read before him. Subordinate to the two 
seniors were four grades of officers, five in each grade, with 
an unlimited number of senior graduates, each forming a 
sort of college, whose duties were to prepare all works pub- 
lished under governmental sanction. Subordinate to the Han- 
lin Yuen was an office consisting of twenty two select mem- 
bers, who in rotation attended on the Emperor and recorded 
his words and actions. There was also an additional office 
for the preparation of national histories. The members of 
the Hanlin, being at the head of the literary graduates, formed 
the body from which most important offices were filled. 

There was also the Kwoh-tsz Kien or National College for 
teaching graduates of the lower degrees and the Kin Tien 
or Imperial Astronomical College, whose duties were defined 
"to direct the ascertainment of times and the movements of 
the heavenly bodies in order to attain conformity with the 
celestial periods and to regulate the notation of time among 
men; all things relating to divination and the selection of 
days are under its charge." The preparation of the almanac, 
designating the lucky and unlucky days and other absurdities 
inserted in it, were under their charge. 

The various departments of the general government were 
so arranged as to hold a check on each other. There were 
two presidents over each board, not merely to assist, but to 
watch each other and oversee the vice-presidents. The presi- 
dent of one board was sometimes the vice-president of another 
and by means of the censors brought under the cognizance of 
several officers, whose' mutual jealousies and ambitions placed 
some check on each other and afforded some guarantee of 
fidelity. 

Having given thus a general view of the organization of 
the government at the capital we proceed to a consideration 
of the government of the provinces. The highest officers in 
the provinces were the tsung-tuh, viceroys, and the futai or 
fuyuen, governors. The tsung-tuh ruled over two provinces 
or else filled two high offices in one, while the futai was over 
one province, either independent or subordinate to a tsung- 
tuh. The viceroy stood as the representative of the Emperor 



236 EVOLUTION OF GOVERNMENTS AND LAWS 

in the territory. The futai filled a similar capacity but inferior 
to the tsung-tuh when there was one. The departments of the 
civil government were five viz., administration, literary, gabel, 
commissariat, and excise, the first being also divided into the 
territorial and financial and the judicial branches. At the 
head of the first branch was the pu-ching sz, usually called the 
treasurer, over the second the ngan-chah sz or criminal judge, 
presided. These two officers acted together in important 
business and the trial of important cases. The literary de- 
partment was under the direction of an officer, selected by the 
Imperial Academy called a hioh-ching. The gabel and com- 
missariat were usually supervised by officers called tao or 
tao-tai, sometimes termed intendants of circuit, who had 
other functions also. The excise was under Kientuh or su- 
perintendents. The collection of the revenue being difficult, 
was mainly entrusted to local magistrates. The military gov- 
ernment of a province included both sea and land forces. It 
was under a tituh or commander-in-chief of which rank there 
were sixteen. In five provinces the futai was commander-in- 
chief and in Kan-suh there were two. Above the tituh, in 
point of rank but not of power, were garrisons of Manchu 
Bannermen under a tsiang-kuin or general, appointed and di- 
rected by the captains general in Peking. The three officers 
tsungtuh, futai and tsiang kuin, if there were one, formed a 
supreme council and united in deliberating on a measure, 
calling in the subordinate in whose department it belonged. 
In these courts civilians took precedence of military officers. 
The authority of the viceroy extended to life and death, to 
making temporary appointments to fill vacant offices in the 
province, to ordering troops to any part of it and taking such 
measures as were necessary for the security and peace of the 
province under him. The futai also had power of life and 
death and jurisdiction of appeals in criminal cases and over- 
saw the conduct of civilians under him. 

Next in rank to the pu-ching sz, treasurer, and ngan-chah 
sz, criminal judge, who always resided at the provincial capi- 
tal, were the intendants of circuit who were located in the 
circuits consisting of two or three prefectures united for this 



CHINA 237 

purpose. They were deputies of the two highest functionaries, 
whom they were appointed to assist and relieve in the dis- 
charge of their duties. Some were appointed to supervise 
the proceedings of the prefects and district magistrates, others 
stationed at important posts to protect them, and those con- 
nected with foreign trade at open ports had no territorial 
jurisdiction. Below these were the prefects or chief magis- 
trates of departments called chifu, chichau, and ting tungchi 
according as they were placed over fu, chau or ting depart- 
ments. These officers received their orders through the 
intendants, were responsible for their full execution and ex- 
pected to know all that took place in their jurisdictions. 

Departments were divided into ting, chau and Men having 
each their separate officers who reported to the head of the 
department over them. They were called ting chi, chi-chau 
and chi-hien. 

The parts of districts called sz were placed under the con- 
trol of siun-kien, circuit restrainers or hundreders who formed 
the last in the regular series of descending rank. The pre- 
fects sometimes had deputies directly under them, as the 
governor had his intendants, when the importance of their 
departments required it. ' Besides these there were many other 
deputies and assistants charged with particular duties in the 
collection of taxes, oversight of the police, care of water ways, 
etc. Besides the officers above mentioned there were a great 
number of clerks, registrars and secretaries connected with 
every officer of high rank and a multitude of petty subordi- 
nates, with some duties to perform, but largely kept to em- 
phasize the importance of their superiors. All above the chi- 
hien were allowed private secretaries. The ngan-chah-sz had 
jailers under their control, as had also the more important 
prefects. 

The hioh-ching or literary chancellor, in rank but not in 
power, stood next the governor. Under him were head teach- 
ers of different degrees of authority, residing in the chief 
towns of the departments and districts. These had some 
degree of supervision over the studies of students and the 
colleges in the chief towns. The chancellor had exclusive 



238 EVOLUTION OF GOVERNMENTS AND LAWS 

authority to confer the lower literary degrees, and he made 
an annual circuit of the province for that purpose, holding 
examinations in the chief towns of each department to which 
all students residing within its limits could come. 

The gabel or salt department was under the control of a 
special officer called a "commissioner for the transport of 
salt." Above these commissioners were eight directors of the 
salt monopoly, stationed at the depots in Chi-li and Shang- 
tung, who also performed other duties. The revenue de- 
partment was unusually large, owing to the collection of so 
much in produce and merchandise. The transportation of 
grain along the Yangtsz River was under the control of a 
tsung tuh, who oversaw the disposal and directed the collec- 
tion of it in eight of the provinces adjacent to the river. In 
each of twelve provinces there was a liang-chu tao or commis- 
sioner to collect grain and in the other six the duty was 
performed by the pu-ehing ss. The supervision of the subordi- 
nates of this department rested with the prefects and district 
magistrates. The number of provincial officers of the differ- 
ent grades above referred to were given as follows : 

8 Governors General or viceroys, six governing two 
provinces each. 

15 Governors. 

19 Commissioners of Finance. 
18 Commissioners of Justice. 
4 Directors of Salt Gabel. 

9 Collectors. 

13 Commissioners of Grain. 

64 Intendants of Circuit. 

182 Prefects. 

68 Prefects of Inferior Departments. 

18 Independent Subprefects. 

180 Dependent Subprefects. 

139 Deputy Subprefects. 

141 District Magistrates of the Fifth Class. 

1232 District Magistrates of the Seventh Class. 1 
x The Middle Kingdom. 



CHINA 239 

The military section of the provincial government was 
under a ti-tuh or general who resided at a central post and in 
conjunction with the viceroy and governor directed the move- 
ment of troops. The native troops in each province were dis- 
tinct from the Manchu and were divided somewhat after the 
plan of the ancient Roman legion, cohort, maniple and cen- 
tury, over each of which were appropriate officers. The gov- 
ernor, major general, and Banner commandant had commands 
independent of each other. Naval officers had the same 
names as those in the army and changes and promotions were 
made from one arm of the service to the other. The general 
officers had power to send special messengers invested with 
full powers to every part of their jurisdiction. 

The Emperor sent commissioners, called Kiu-chai, to all 
parts of the empire, ostensibly on particular business, but re- 
quired to take general observations of what was going on. 
In considering the extent of the jurisdiction and vast power 
reposed in these various officers, it must be borne in mind that 
each viceroy had under him more people than are to be found 
in any but the greatest countries of Europe, that he stood as 
the representative of the Emperor and of the supreme legis- 
lative, executive, and judicial power, and that he constantly 
exercised, in person and through his subordinates, more or 
less of all these functions. The Emperor, with his great army 
of assistants at Peking, watched over and directed not only 
the affairs of the eighteen home provinces, but also the outer 
dependencies. It is exceedingly difficult for one, accustomed 
only to study western governments and laws, to gain a clear 
conception of this vast governmental system, which owed 
none of its principles, forms or policies to the suggestion of 
other nations. The government like the people was indigenous 
and to be understood must be viewed in connection with its 
environments. 

No officer was allowed to marry in the jurisdiction under 
him nor to own land in it, nor have a near relative holding 
office under him; and one was seldom continued in the same 
station for more than three years. Manchus and Chinese were 
mingled together and were expected to watch and mutually 



240 EVOLUTION OF GOVERNMENTS AND LAWS 

check each other. Members of the imperial clan were required 
to attend the meetings of the boards at the capital and ob- 
serve and report what they deemed amiss to the Emperor. A 
triennial catalogue of merits and demerits of all officials in 
the empire was made out by the Board of. Civil Office and 
submitted to the Emperor. This catalogue was made up from 
reports, made by all provincial officers on the conduct of those 
under them, forwarded by the governors. The points were 
arranged under six heads, diligence, efficiency, superficiality, 
talents, superannuated and deceased. On this basis the offi- 
cers were advanced or degraded. Officers were required to 
accuse themselves, when guilty of crime committed by either 
themselves or their subordinates, and request punishment. 
The names and standing of all officers were published quar- 
terly by permission of the government in the Red Book, in 
four twelve-mo. volumes, and officers of the army and Banner- 
men in two others. This publication was begun about 1580 
and gives the name, native province, race, title and salary of 
the officers. The record of most officials is one of ups and 
downs, very few being able to steadily advance., Except the 
preferences given to the imperial clan, Chinese officials came 
up from the great multitude. No matter how humble his 
birth, any subject was eligible to the highest office under the 
emperor. Theoretically education was the test of qualifica- 
tion. Practically the favor of the appointing power was of 
first importance and personal influence often outweighed merit. 
The orders of the court were usually transmitted in manu- 
script. General proclamations were printed on yellow paper 
in the Manchu and Chinese languages with a border of 
dragons. Orders and regulations issued by governors and 
other principal officers to the people of the provinces were 
also published. Standing laws and local regulations were 
often carved on tablets of black marble and placed in the 
streets where all could read them. Commands of the gov- 
ernment were usually printed in large characters and copies 
were posted at the doors of the offices and in public places in 
the streets, with the seal of the officer authenticating them. 
Important edicts were also often printed in pamphlet form. 



CHINA 241 

Persons eligible to office were divided into nine literary ranks, 
the lowest including village magistrates, deputy treasurers, 
jailers, etc. Policemen, local interpreters, clerks and attend- 
ants were not regarded as of any rank and were mostly resi- 
dents of the locality where employed. Titular rank was sold 
by the government, but this did not open the road to official 
position, though offices were purchased corruptly and in- 
stances occurred where offices were sold by the government. 
The principal advantage of the honorary title was that it 
saved the possessor from the bamboo, where others would 
suffer. 

Besides the officials holding by appointment under the Em- 
peror, there were village headmen, chosen by the people them- 
selves, who had more or less important duties to perform 
according to circumstances. They decided petty disputes, 
supervised local police, regulated festivals, markets and 
streets, collected taxes, etc. They were under surveillance 
of their supervisors and an appeal lay from the headmen to 
the district magistrate. Meetings of the headmen of many 
villages to consult on matters of mutual interest were some- 
times held and they held something of a check, as representa- 
tives of the people, on the oppressions and extortions of the 
higher officials and their menial dependents. The existence 
of clans, which is most marked in the southern provinces, is 
a source of much disorder and crime. There are about four 
hundred clans in the empire, many of which are scattered 
throughout different parts, thus in effect greatly multiplying 
the number. The clans are most active and turbulent in the 
southern provinces, especially Kwang tung and Fukien. By 
uniting to shield members guilty of crime, great difficulties 
are often interposed to the administration of justice. False 
witnesses and sometimes hired substitutes, confessing crime 
to shield the guilty, are produced and paid by the clan. In 
some places the clan becomes little more than a nest of bandits 
and even develops into the terrible Kouan Kouen of whom 
the Abbe Hue says, "To give and receive wounds with com- 
posure; to kill others with the most perfect coolness and to 
have no fear for yourself, this is the sublime ideal of the 



242 EVOLUTION OF GOVERNMENTS AND LAWS 

Kouan Kouen." In the cities the householders on each street 
are required to unite in policing the street and maintaining 
order, and for this purpose they select a headman who has 
supervision. The citizens also form voluntary guilds to fur- 
ther mutual interests, each having its assembly hall, where 
they assemble for about the same purposes as do European 
guilds. Popular assemblies are sometimes held on a more 
comprehensive scale and in Canton there is a building, called 
the Free Discussion Hall, where political matters are openly 
discussed and the gatherings often wield great influence. 
Secret societies, some of them ramifying throughout a large 
part of the empire, are numerous, though the policy of the 
government was to suppress them. City charters appear to 
have been a thing unknown and the people of cities were 
subject to substantially the same governmental system that 
prevailed throughout the empire. China is peculiarly free 
from class distinctions. There is no hereditary aristocracy 
corresponding to that of Europe, the clan of the Emperor 
and descendants of Gonfucius alone receiving substantial 
recognition. 

Caste in the sense in which it exists in India is unknown. 
There are prejudices against members of certain aboriginal 
tribes in the interior and boat people on the coast. Aliens, 
slaves, criminals, executioners, police runners, actors, jug- 
glers, beggars, vagrants and vile persons, were not eligible 
for the literary examinations, nor their descendants until for 
three generations they had followed some useful employment. 
The democratic part of the system was in the village organi- 
zation, which was thoroughly so. All citizens were electors 
and eligible to office. The village collectively was responsible 
for the taxes and the headmen, usually the elders, were 
generally of high character and worthy of the confidence re- 
posed in them. These village organizations included con- 
siderable numbers of people, in some instances several thou- 
sands. In the election of headmen, the people divided by 
clans, rather than parties representing different principles, 
and most of the wrongs attributed to these local governments 
are chargeable to clan enmity. 



CHINA 243 

Slavery exists in China, but only to a very limited degree 
as to males, the numbers of whom are so few as to be hardly 
appreciable. Women are sold, but usually for concubines. 
Polygamy is allowed, but not much practiced except by the 
rich. The chief fundamental defect in the organization of 
Chinese society unquestionably is the low estimation in which 
women are held and their oppression by the males. The wife 
is the slave of her husband, with whom she is not permitted to 
eat, or attend public worship. The birth of a son is followed 
by great rejoicing but the birth of a daughter is considered a 
calamity. The girl is the servant of her brothers as well as 
her parents, and until recent times in obedience to the merci- 
less demands of fashion, was required at an early age, to 
endure the barbarous process of foot binding, by which she 
was rendered a cripple for life. This seems to have been 
even more the work of the women than of the men, the 
mothers like those of western lands prizing above all things 
the appearance which fashion demanded. The respect for 
parents and for age, so strongly inculcated in all the teachings, 
tends in some measure to alleviate the condition of women in 
the closing years of life. The fact, however, is abundantly 
established that the Chinese, as a nation, deny absolutely the 
equality of the sexes and remain blind to the blighting influ- 
ence on society, and on each succeeding generation, which the 
degradation and ill treatment of mothers have. Though Chi- 
nese philosophers have perceived and taught the value of home 
instruction and of the mother's influence on her offspring, they 
have utterly failed to carry the lesson to its logical conclusion 
and enjoin such care, education and considerate treatment of 
the mother as will enable her to properly discharge these 
duties. Herein lies the greatest defect in the social system of 
the empire. 

A general survey of the workings of the Chinese govern- 
ment will show that it drew far less from the people by tax- 
ation than any other great government, population considered, 
and the number of officials employed was very much less. 
The complaints of the people were not so much against regu- 
lar taxation as the extortion of petty officials and hangers on 



244 EVOLUTION OF GOVERNMENTS AND LAWS 

of the courts. It was the corruption and extortions of offi- 
cials high and low that bore heavily on those who found need 
of resorting to governmental protection or were called on to 
answer for their doings. 

China is the least military of all the great governments, ex- 
cept the United States of America. Its standing army in- 
cludes less than one million men of whom very many are but 
nominal soldiers. This is less than one out of four hundred 
of its population. Any first class European power, Great 
Britain excepted, can muster a larger force than this of 
trained soldiers, though not all in actual service. Chinese 
soldiers are generally regarded with contempt by Europeans 
and while, as individuals, the Chinese frequently exhibit as 
much physical courage as Europeans, their character, habits 
and traditions are essentially unmilitary. 

In its government we find that the primary structure was 
democratic in character, resembling the tribal organizations 
of primitive people, which usually accord some degree of dis- 
tinction and respect to the elders. At the head of the vast 
official machine was the Emperor, theoretically the great 
patriarch of the whole, vested with full power, which he was 
expected to exercise as a father, according to established prin- 
ciples and customs and for the good of his immense family. 
The theory of the government did not admit of anything like 
a clear separation of it into legislative, executive and judicial 
departments, nevertheless these functions were in practice 
separately exercised to a considerable extent. The principles 
declared in the classical books require that the government be 
rather one of laws than of the arbitrary will of men, and the 
Book of Rites indicates the relations of the various grades of 
officials to each other and to the people. However arbitrarily 
they may have exercised their powers in practice, the army 
of officials who administered the government had no com- 
mission to rule according to their pleasure. Their powers 
and duties were well marked out and a well devised and con- 
stant system of surveillance and espionage to keep them to 
their duties was maintained. 

China has long had its code of written laws termed the 



CHINA 245 

penal code, though it relates to what are called civil cases with 
us as well as to criminal ones. An extended summary of this 
code as it existed a century ago, before western influences had 
been sufficient to produce any material effect on Chinese senti- 
ments, will be found in the Appendix. 

Steamboats, railroads, and telegraphs have reduced the dis- 
tance between China and the west; other western inventions 
and scientific teachings have introduced new ideas into the 
ancient realm; battleships and great guns have demonstrated 
the destructive forces of the "foreign devils," and China can 
no longer be a world to itself. The new learning of the west 
has been acquired by many Chinese scholars, and books and 
periodicals of all kinds have disseminated it throughout the 
empire. Though Chinese statesmen, and merchants came in 
contact with foreign people ever since the opening of trade 
between Europe and India and China but little effect on the 
multitude was produced until very recent times. Kwang-su, 
an infant, ascended the throne in January, 1875 with the 
dowager empresses Tsz'e Hsi and Tsz'e An as guardians. 
Tsz'e An died in 1881 and from that time till 1898 the sover- 
eign power was wielded* by Tsz'e Hsi. Kwang-su then as- 
sumed authority for a brief period but was deposed by the 
dowager who resumed authority. The war with Japan, the 
acquisition of the Philippine Islands by the United States, the 
construction of the Siberian railway by Russia, the boxer up- 
rising in 1900 and the intervention of the foreign powers and 
the war between Japan and Russia, combined with increasing 
knowledge of western arts, inventions and ideas to produce 
a public sentiment among the educated classes in favor of 
sweeping reforms in governmental methods. In 1905 an Im- 
perial Commission to study the administrative systems of 
other countries was appointed with a view to the possible 
establishment of representative government in China. This 
Commission visited Japan, America and Europe. On Sep- 
tember 1, 1906 an edict for the future establishment of a 
parliamentary form of government at no fixed date was 
promulgated. August 27, 1908 a decree issued in the name 
of Kwang-su announced the convocation of a parliament in 



246 EVOLUTION OF GOVERNMENTS AND LAWS 

the ninth year from that date. Reform of the educational 
system to include modern sciences as well as the Chinese 
classics began in 1902. Kwang-su died in November, 1908 
and his death was followed by that of the dowager empress 
on the fifteenth of that month. Pu-Yi, the infant nephew of 
Kwang-su, succeeded to the throne. On October 14, 1909, 
Provincial Assemblies elected in the provinces met. In Feb- 
ruary, 1910 a decree approving schemes of the Commission 
for constitutional reforms with local representative govern- 
ments in the prefectures and departments and reforms of the 
judiciary was promulgated. The appointment in May 191 1 
of an Executive Council composed of eight royal princes, 
four Manchus and only five Chinese, and the assertion by the 
regent that "the right to name officials belongs to the Emperor 
alone" and the manifestation of reactionary tendencies by the 
court, precipitated a revolution which resulted in the abdica- 
tion of the little Pu-Yi and the dowager Empress on Febru- 
ary 12, 1 91 2 and the establishment of the Republic of China. 
While the change from the theory of an absolute paternal 
despotism to a republic seems so very great, China was not 
wholly unprepared for it. The indispensable prerequisite of 
a written language read and comprehended by a large part 
of the people, coupled with general education in the principles 
of government as declared in the classical books and long 
familiarity with local self-government in the villages and com- 
munities, and the meetings of the head men of a number of 
villages for consultation and concerted action had prepared 
the people in some measure for republican institutions. 

Nothing is more common than to regard with contempt 
that which is not understood. Europeans and Americans gen- 
erally look upon Chinese civilization as containing nothing 
worthy of adoption or even of serious consideration. The 
Chinese are now manifesting a willingness to learn from the 
western barbarians, whom they so long despised. 

The prominent, glaring faults of the Chinese are their 
treatment of women, slavery, polygamy, binding the feet, 
torture to extort confessions of crime, and cruel punishments. 
These are so repugnant to Europeans that it is often assumed 



CHINA 247 

that no great virtues can be associated with conduct so vicious. 

Europe viewed from the standpoint of China, exhibits many 
comparatively petty states, constantly burdened with the sup- 
port of great armies and often warring with each other, speak- 
ing different languages as do the inferior tribes within the 
Chinese empire. They are shocked at the disrespect exhibited 
toward parents in America, even more than in Europe; at 
the want of respect for one another indicated by the absence 
of ceremonious greetings, at the absurd fashions in clothing, 
the absurd burdens of woolens and linens in summer worn by 
the men, and the indecent and harmful exposure of their per- 
sons by the women at great functions in winter ; at the multi- 
tudes of idle rich and idle poor found everywhere; at the in- 
justice and bad policy of laws which fix the fines of rich and 
poor at the same sum of money ; at the want of discrimination 
in punishments and the actual exemption of the nobility in Eu- 
rope and the very rich in America from accountability for their 
conduct, and many other European and American peculiarities. 

To the American or European who considers the Chinese 
Penal Code, probably the first matter that will challenge his 
attention is the want of a civil code. Europeans and Ameri- 
cans from the earliest historical times have classified their 
causes in court as civil and criminal, and this division is re- 
garded as natural and indispensable. Is it really either natural 
or indispensable? The fundamental idea of the Chinese was 
that the Emperor occupied the relation of a father to all the 
people; that the duty rested on him to restrain all his multi- 
tude of children from doing wrong, and also to compel them 
to do right. How should this be done? As a father would 
enforce obedience and right conduct by his children. For 
petty offences and omissions of duty a mild whipping; for 
those more serious more strokes. When whipping appeared 
inadequate, banishment, and for the most heinous crimes, 
death. The Chinese deem punishment due to him who de- 
frauds his neighbor as well as to him who steals from him; 
to him who unlawfully detains another's property as well as 
to him who stealthily takes it. To fail to pay a debt or per- 
form a contract or duty is a misdeed to be corrected with the 



248 EVOLUTION OF GOVERNMENTS AND LAWS 

bamboo. Misdeeds are graded and classified in the Penal 
Code of China far more logically and naturally than in Europe 
or America. The turpitude of the misdeed depends on the 
value of the property of another which has been unlawfully 
taken, retained or misappropriated, the nature of the injury 
to the person, the intent of the wrongdoer, and the relation- 
ship of the parties. In Europe and America an arbitrary line 
is drawn between crimes and civil wrongs. Many frauds and 
misdeeds of the greatest magnitude are not classed as crimes, 
and some really meritorious acts are punished. Larceny and 
embezzlement, which, in the nature of things have many 
grades of moral turpitude, are ordinarily divided arbitrarily 
into two classes based on value or kind of property. The 
Chinese make a much more logical classification and punish 
petty pilfering with but a few blows, and larceny of a large 
sum with death. To steal food to satisfy hunger is but a 
slight fault, to deliberately take a large sum of money or 
property of great value from another exhibits moral turpitude 
and is punished accordingly. It is regarded as a much more 
serious offense for a son to strike his father or mother than 
a stranger. It is a less offense for a member of a family to 
appropriate a part of the property of another member of it to 
his use than to take from a stranger. In dealing with prin- 
cipals and accessories in crime, the one who plans and directs 
is regarded as the principal, whether he actually takes part in 
the perpetration of the offense or not. This also is more logi- 
cal than the rules of the common law of England and the 
United States. 

In the infliction of punishment regard is had to the ability 
of the culprit to endure it. Both the old and the young are 
treated more leniently than the strong mature men. Women 
are allowed special consideration in this particular and retain 
the upper garment while a man is required to strip. Where 
commutation is allowed in lieu of the bamboo, the amount of 
the payment depends on the ability of the culprit to pay, and 
the rich and powerful must pay ten times as much as the 
poor and humble. When it is considered that in the west the 
rich nearly always escape, and when convicted and actually 



CHINA 249 

punished are treated with far more consideration than the 
poor, the superiority of the Chinese code in this particular 
appears very marked. 

While the laws with reference to marriage and divorce do 
not commend themselves to the Western mind, in one par- 
ticular the divorce law is superior to ours. It recognizes mis- 
conduct as a ground for a divorce, but it also recognizes good 
conduct as a defence. Clearly, good conduct should be 
weighed as well as bad. Western people are disposed to 
ridicule Chinese regulations with reference to mourning, yet 
these accord perfectly with the central idea of paternal author- 
ity on which both the governmental and domestic systems 
were based. Doubtless the profound respect for parents man- 
ifested by the Chinese is largely due to the law relating to 
mourning, which makes the loss of father or mother a calam- 
ity, not merely in and of itself, but also by reason of the legal 
consequences which follow. In the West the heir of a great 
estate is far too often forgetful of his loss and over conscious 
of his gain. 

In no other country is industry and thrift so general, and 
nowhere else is there so small a percentage of idlers living 
on the industry of others. This also is due in some measure 
at least to the policy of the law. Speculators are not allowed 
to hold great tracts- of land without use. The owner must 
make his land productive and the village authorities must see 
that he does so. 

Acts of Parliament covering limited fields and the recog- 
nized methods of carrying on public affairs constitute the so- 
called British constitution. In China the classical books de- 
fined the relations of the people and their rulers, and the offi- 
cial system through which the people were governed, with its 
explicit rules and the elaborate penal code, constituted their 
constitution. It is true that they had not the theoretical sepa- 
ration of executive, legislative and judicial departments, but 
on the other hand they had a more complete system of chang- 
ing officials from place to place and having each watch and 
report on the conduct of others than can be found in any 
other country. 



250 EVOLUTION OF GOVERNMENTS AND LAWS 

Though classed as a despotism by Europeans, China had 
encouraged learning through many centuries, while European 
kings discouraged it. In theory education and merit were 
the sole means of gaining official station and of retaining it 
when once acquired. Knowledge of the laws was exacted of 
all officials. Those who wielded the powers of government 
were not above the law, but themselves liable to punishment 
for its violation. A western judge is not liable to punishment 
for a wrong judgment, but in China all the court officials as 
well as the judge were subject to punishment for disregard- 
ing the law. 

Until very recent times the rulers of Europe refused to give 
information to their subjects of the doings at their courts. 
The Emperors of China have long made public their official 
acts, and through the Peking Gazette all might keep informed 
of the acts and orders of the government. 

The people of China have from a very early day enjoyed, 
not only a large measure of liberty of individual action, but 
of association and combination as well. The Empire includes 
all varieties of climate, soil, and productions. Perpetual 
winter reigns on the peaks of the Thian Shan and Kuen Lun, 
while the most southern provinces extend into the tropics. 
The people have never relied on any other country for the 
necessaries or even luxuries of life. Foreign commerce has 
always been limited, yet the internal commerce of China is 
and long has been second to that of no country in the world. 
It has never been the policy of the rulers of China to inter- 
fere with the useful activities of the people, nor has the gov- 
ernment for any long period attempted to supervise or direct 
them. Industry, thrift and the performance of obligations 
have been enjoined and enforced. The average Chinaman, 
whether at home or abroad, looks to China as the only really 
civilized country in the world, and the best place on Earth in 
which to live. Is it quite certain that he is altogether wrong? 

It is easy to point out moral blemishes in the Chinese. It 
is equally easy to see them in Europeans and Americans. It 
is not easy to judge justly of the relative merits and demerits 
of the different people or of their institutions and laws. 



CHINA 251 

China combined democratic local self-government under 
written laws with an autocratic central power acting through 
a most carefully devised arrangement of bureaus and depart- 
ments designed to afford mutual checks on each other. Under 
this system one-fourth of all the people on the globe lived. 
They have known less of the horrors of war than any other 
equal number of people on Earth no matter how selected. 
They are subject to less annoying restrictions in the transac- 
tion of their daily business than the people of most states of 
Europe. The morality inculcated by their classical books and 
the Buddhist teachers is as pure and lofty as that found in 
the teachings followed by the people of the West. 

As the study of a foreign language is one of the best means 
for learning ones mother tongue, so the study of the code of 
laws most dissimilar to that of our own country is an excellent 
method of finding out the defects and absurdities of the sys- 
tem to which the student is accustomed. The extreme dis- 
similarity of the institutions of China and those of Europe 
and America give especial value to the study of its ancient 
moral teachings, laws, customs and government. 

Authorities 

Williams: The Middle Kingdom. 
Langdon: China and the Chinese. 
Wilson : China. 
Gray : China. 

Hue: Travels in the Chinese Empire. 
Murray: Travels of Marco Polo. 
Encyclopaedia Britannica. 
Staunton: Penal Code of China. 



CHAPTER XI 

Japan 

So far as the history of Japan has come down to us it is 
the history of a single dynasty. No other country is now 
ruled by a family so long in power, to speak more accurately, 
theoretically in power. Starting with Jimmu Tenno, whose 
reign commenced about 660 B.C., the mikados have traced 
their descent from him and have been recognized as the sover- 
eigns of the empire. That there were people on the island 
prior to his time and that many events of great historic in- 
terest transpired long before, do not admit of doubt, but, 
as the Japanese had no written records till the sixth century 
of our era, even the history of the early rulers is founded on 
tradition and starts with the supernatural and mythical. Ac- 
cording to the legend, Ningo-no-Mikoto, grandson of the sun 
goddess Ameterasu-o-mi-Kami, settled in the south part of 
the island of Kiushiu. His son, Jimmu Tenno, proceeded 
northward and landed on the principal island from the Bay of 
Ozaka. Thence he advanced into the country, subduing the 
neighboring provinces, and established his residence near the 
town of Nara in the year 660 B.C. It is surmised that the 
Ainos, now found only in the extreme north of the empire, 
were the aborigines, and that Jimmu Tenno was the leader 
of a superior race, which invaded the country from the south. 
The character of the inhabitants of the island at the date of 
his advent must, however, remain a matter of conjecture 
rather than of established fact until some record not yet made 
public is discovered. 

The fundamental theory of the government, promulgated 
and maintained through all the generations, is that of a ruler 
divinely descended and commissioned to govern the people 
according to his sovereign will. Jimmu Tenno is credited with 
introducing the culture of cereals, hemp, garlic and ginger. 

252 



JAPAN 253 

His early successors would seem to have had exceptionally 
long reigns, as the tenth Mikado, Sujin Tenno, ruled from 
97 to 30 B.C. This would allow more than an average of 
sixty years to each mikado. Though some progress was made 
in agriculture and the authority of the Mikado was so extended 
as to extort tribute from Corea in 32 B.C., a low state of 
civilization may be inferred from the existence of a custom by 
which on the death of the Mikado or one of his near relatives 
his servants were buried alive with him. A law prohibiting 
this custom was promulgated in the year A.D. 2. Such a 
custom implies the prevalence of the most unmitigated slavery 
and abject submission to despotic power. It is evident that 
the dominion of the early rulers did not extend over all the 
islands, for not until the reign of Kuko Tenno, A.D. 71 to 
130, was the great Kuwanto subdued, and an invasion from 
Kiushiu caused the subjugation of that island, which, though 
the landing place of the father of the first Mikado, would seem 
never to have been subject to his immediate successors. 
Though Japanese writers seem to accept the accounts of the 
administrations of the early rulers as historic facts, there are 
so many elements of improbability connected with them that 
they hardly afford a safe basis for deductions. Little is known 
of the number of people on the islands or their condition prior 
to the introduction of letters. It seems reasonably certain 
however, that the early mikados ruled over a rather sparsely 
settled country, and that their dominions were confined to a 
portion only of the islands. Despotism of the most absolute 
character is the earliest form of government of which an 
account is preserved. Though the Japanese maintain that the 
abolition of the shogunate and the restoration of power to 
the Mikado but reinstate the reigning house in the authority 
which of right it always had, the actual power has in the 
course of centuries not merely passed into other hands, who 
have administered it for long periods, but the system of gov- 
ernment and the organization of society have undergone radi- 
cal changes. In studying these changes let us bear in mind 
that we are dealing with a people whose homogenity has con- 
tinued without material change for more than 2,000 years. 



254 EVOLUTION OF GOVERNMENTS AND LAWS 

There was not at any time after Jimmu an invading conqueror, 
nor is any account preserved of the influx of a servile race. 
The present population of the islands have descended from its 
early inhabitants with but slight and occasional intermixture 
of foreign blood, never enough to materially affect the great 
mass. Whence the early ideas of government were derived is 
unimportant. They were essentially despotic. 

In 202 the Empress Jingu Kogo invaded Corea and placed 
it under tribute. This was followed by an embassy from China 
and the introduction into Japan of the teachings of Buddha 
and Confucius, and the language, literature and laws of the 
Chinese. It was several centuries however before this pro- 
duced marked effect, for it is said that the introduction of 
Buddhism is generally regarded as dating from 522, and that 
the Japanese had no written language till that century. The 
king of Kudara in Corea sent the Mikado bonzes, statues of 
Buddha, prayer books and other religious paraphernalia. As 
he still adhered to the Shinto religion he asked for apothe- 
caries, soothsayers and almanac makers instead, for which he 
exchanged munitions of war. 

About the year 600 the Empress Suiko introduced into her 
court the manners of the Chinese, with whom at that time 
there was considerable intercourse. How great a change this 
effected cannot be definitely stated, but it did not materially 
alter the form or character of the government. During her 
reign the Buddhist religion gained adherents rapidly, and its 
influence tended to improve society and bring about peaceful 
conditions. The early practice of burying living slaves and 
wives with the bodies of their deceased lords seems to have 
continued, notwithstanding the early prohibition of it, until 
the reign of the thirtieth Mikado, when a strict injunction 
against it was issued. 

In the time of the thirty-eighth emperor, the three chief 
offices of Sa-Dai-Jin, U-Dai-Jin and Nai-Dai-Jin were created. 
Tenji also established the office of Dai-Jo-Dai-Jin (great min- 
ister of the great government), and conferred it on his eldest 
son. His friend Nakatomi he made Nai-Dai-Jin and allowed 
him to adopt the family name of Fujiwara. This family 



- 



JAPAN 255 

played a most important part in the rulership of the empire 
for several centuries. Prior to this time, except during periods 
of internal strife involving the succession, the government was 
administered directly by the Mikado. He led the armies of 
peasant soldiers, who disbanded and returned to their peace- 
ful callings when war was over. On the introduction of 
Chinese customs a court nobility grew up around the mikado, 
which in time deprived him of all real authority. In the early 
centuries and down to the time of Tenji Tenno in the last 
half of the sixth century there were no considerable cities, 
and the Mikados shifted their residence though always within 
the Gakmai or home province. 

Kuwammu Tenno, fiftieth Mikado, established his residence 
at Kioto, which remained the capitol of the empire till recent 
times. He caused many improvements to be made, and con- 
structed canals and dams to regulate the water courses, built 
temples and palaces, established schools and encouraged the 
! Buddhist teachers. The relation of the Fujiwara to the 
Mikado and the important special privileges they enjoyed af- 
forded them the means of greatly increasing their power. The 
office of Kuwambaku, or regent, was made hereditary in the 
Fujiwaras, and from the daughters of the house the Mikados 
took their wives. With the advent of weak princes early in 
the ninth century the practice commenced of inducing or forc- 
ing the Mikado to abdicate in favor of an infant member of 
the family and thus permit a Fujiwara to rule as regent. 
This was carried to such an extreme that all real power was 
taken from the Mikados and exercised by the regents. The 
power of the Fujiwaras at court continued till the close of the 
eleventh century. 

The growing influence and importance of the noble houses 
of the Taira and Minamoto were contemporaneous with in- 
creasing military tendencies. Members of these families were 
at the head of the armies, resisting invasions and suppressing 
insurrections. The Fujiwaras had ruled through court in- 
trigues. The Taira and Minamoto hewed their way with 
the sword. With the beginning of the twelfth century feud- 
alism rapidly developed. The power of the central despotism 



256 EVOLUTION OF GOVERNMiENTS ANO LAWS 

had vanished, and the real force of government was wielded 
by lords who directed the arms of the Samurai in the prov- 
inces. So marked was the tendency to militarism that even 
the priests of that most peaceful of all religions, Buddhism, 
appeared at the capitol in arms to enforce their demands. The 
struggle for political supremacy, carried on by the rival houses 
of Taira and Minamoto, devastated the country for centuries 
and was more enduring than any known war for the succes- 
sion to a throne. Theoretically the right of the Mikado to 
rule was always recognized. By the success of one or the 
other faction no right was established, no claim of sovereignty 
denied. The struggle was for actual dominion, to be exer- 
cised in the name of the Mikado, but in spite of his feeble 
will. The successes of the Minamoto and their allies under 
Yoritomo near the close of the twelfth century resulted in his 
taking the title and office of Sei-i Shogun, which from that 
time became hereditary in the Minamoto family, and its pos- 
sessor wielded the real power of the government. Yoritomo 
established a council of state, who were distributed over the 
provinces to share as military officers the power of the civil 
governors. He systematized the feudal system and is called 
its founder. He made his headquarters at Kama Kura near 
the site of modern Yokohama, where he died in 1199. Yori- 
tomo is credited with improving the administration by 
establishing a court of justice, levying a uniform tax and 
forbidding priests to be warriors. Though wielding the actual 
power, he always went through the form of obtaining the 
sanction of the Mikado. 

On the death of Yoritomo his son Yoriiye succeeded as 
Shogun, but being weak and dissolute, he at once fell under 
the influence of his mother's family. At her instance a family 
council with her father, Hojo Tokimasa, at the head was 
formed. This council assumed the real power and admin- 
istered the government in the name of the Shogun and Mi- 
kado, who were allowed to live in idleness and dissipation. 
The regency of the house of Hojo continued till 1334. The 
shikken, as the head of the house was styled, took care that the 
shogunate should never pass into strong hands but should 



JAPAN 257 

always be held by an infant or a weakling. Though the 
Hojos are given a hard name in history, under their rule 
the country was generally at peace and growing in prosperity. 
The intrigues and murders at court were perhaps of less con- 
sequence than the increased security of the common people, 
but this security could hardly have been of an exalted char- 
acter under the growing power of the military class. 

While incursions into Japan from Corea are recorded, none 
of them were in such force as to seriously threaten the inde- 
pendence of the empire. In 1275 the forces of the great 
Kublai Khan took possession of Tsushima and Iki and at- 
tempted to land in Kiushiu, but were driven off. Again in 
1 28 1 a far larger army was landed in Kuishiu, but the Japa- 
nese under Ho jo Tokimmie met and routed them, and their 
fleet was destroyed by a typhoon. To one familiar with the 
struggle for supreme power in western nations it seems ex- 
ceeding strange that through all the centuries care was always 
taken to preserve the succession and nominal rule of the 
Mikado, and that after the power of the Shogun was estab- 
lished the same system was followed in reference to his office. 
The overthrow of the Hojo in 11 34 was followed by an at- 
tempt on the part of the Mikado, Go-Daigo, to resume the 
active exercise of power and by the Ashikaga to rule as 
Shogun. In order to accomplish this an attempt to depose the 
Mikado by a forced abdication in favor of the Ashikaga's 
choice was made and resulted in a long internal struggle, 
each side drawing to its support the retainers of its partisans. 
For fifty-six years there were two rival dynasties, one of the 
north and the other of the south. During the wars of this 
period the country was devastated, and the condition of the 
people rendered correspondingly miserable. Piracy developed 
on the coast, and Japanese corsairs ravaged the coasts of China 
and Corea. After the settlement of their differences by agree- 
ment of the rival claimants in 1392 the country enjoyed 
a brief respite, but the spirit of faction and the love of strife 
attending the increase of the local and personal power of the 
country nobility soon plunged the country into civil war again. 
The samurai followed the daimio to whom they were at- 



258 EVOLUTION OF GOVERNMENTS AND LAWS 

tached, no matter what the nature of the quarrel. The condi- 
tion of Japan seems to have been essentially the same as that 
of Europe during feudal times, when each local ruler fought 
his equals and murdered and pillaged the defenceless. The 
priests contributed nothing for the betterment of conditions, 
but by their intrigues and licentiousness aggravated the miser- 
ies of the times. Kioto cased to be a place of safety, and the 
old court nobility — the Kuge — were forced to find shelter in 
the castles of the Daimios in the provinces. 

The Shogunate of the Ashikaga terminated in 1573, and a 
vacancy ensued until 1603, when Tokugawa Iyeyasu was in- 
vested with the office. The first European to reach Japan 
was the Portugese Mendez Pinto in 1542. He introduced fire- 
arms and the Christian religion. With the firearms they 
were greatly pleased, but the progress of Christianity was 
slow and followed by bitter persecution. The religion of the 
west cannot be said to have ever exercised a marked influence 
on Japanese society, and the wonderful awakening of recent 
times has been, not to the religion, but to the arts and civiliza- 
tion of the west. 

After the conclusion at Sekigahara of the bloody wars 
which resulted in the elevation of Iyeyasu to the supreme 
power as Shogun, he proceeded to complete the system of 
feudal tenures and to parcel out the provinces among his sup- 
porters. He also took measures to eradicate Christianity. 
Under his administration the feudal system reached its height 
with the Shogun as its head, instead of the Mikado. His great 
success in attaining his two main objects, the perpetuation of 
the supreme power in his family and the peace of the country, 
is attested by the fact that his successors ruled substantially 
in peace for the ensuing 268 years. 

In Japan, as in feudal Europe, the real power of the no- 
bility was based on military organization and a theory of 
title to land. Without attempting any radical change of 
theory, Iyeyasu moulded the system to secure his own power. 
There were thirty-six leading families besides his own who 
took the name of Matsudaira and ninety of the Kokushiu, 
smaller landlords, whose revenue ranged from 10,000 to 



JAPAN 259 

100,000 koku of rice per year. These families held theoretic- 
ally as feudatories under the Mikado, but actually in their own 
right. To secure his own power Iyeyasu seized the lands of 
his enemies by force and parcelled them out among his own 
retainers. The system of sub-infeudation under the great 
daimios prevailed in Japan as well as in Europe. A peculi- 
arity of the Japanese system was that the estate of a daimio 
could neither be enlarged or diminished in any way without 
the express consent of the Shogun. Iyeyasu's retainers, called 
hatamotos or flag-supporters, ranked below the daimios, and 
had each a small train of from three to thirty retainers. They 
numbered about 80,000 in the empire and constituted the mili- 
tary basis of his power by which he held the Mikado practi- 
cally as a captive, though nominally his sovereign. Below 
these were the private soldiers, also belonging to the Samurai 
or military class and under the command of the Shogun. 
Iyeyasu observed the policy of separating the great daimios, 
who had been or were suspected of being hostile to him, by 
assigning them disconnected tracts of land between which he 
placed his own tried vassals. The Daimios and Samurai, like 
the feudal lords of Europe, despised work and all who labored. 
Many of them were dissolute and given to brawling and 
robbery. 

The head of the family held not only the title to the land 
but had full power over all its members. The wife belonged 
to the family of her husband. The practice of adoption was 
common, when there was danger of a failure of male heirs to 
fill the military tenancy, in which case the land would escheat 
to the lord. As in Europe the lords allowed the tillers of 
the soil only a meager subsistence. The idle, criminal soldiery 
took the lion's share and gave no return for it. The essential 
elements of the governmental system were ownership and 
hereditary tenure of the land enforced by military organiza- 
tion. In Iyeyasu's time the Mikado was unable to direct the 
military force and therefore shorn of actual power, though 
always recognized as the rightful ruler and the source of all 
titles of honor, which men prized as highly in Japan as any- 
where in Europe. The rule of the Tokugawa from the time 



260 EVOLUTION OF GOVERNMENTS AND LAWS 

of Iyeyasu to 1854 was distinguished by a settled policy of 
isolation from the outside world and military rulership at 
home. The feudal lords with the Shogun at their head and 
the Samurai at their command maintained peace at home, 
while population multiplied. The intercourse with the Dutch, 
the only European nation favored with a commercial treaty, 
was carried on under the most humiliating restrictions and 
confined to the places designated by the government. Inter- 
course with China seems to have been more favored. Though 
the military class was strongly fortified in the possession of 
all the advantages of the Japanese system, the agitation which 
resulted in the wonderful modern awakening to new ideas 
came from the scholars and thinkers among the nobility and 
Samurai. The extreme poverty and ignorance of the Hinin — 
common people — afforded them no opportunity for education, 
interchange of thought, or combination. The nobility and 
Samurai during the centuries of peace became more students 
than warriors, and their researches into the early history and 
religion of the country resulted in the rapid development of a 
sentiment in favor of the abolition of the shogunate and a 
return to the ancient form of government with the Mikado as 
the real head. 

The advent of admiral Perry with a demand for a treaty 
of commerce with the United States in 1854 resulted in open- 
ing new ports for trade by the Shogun. This was quickly 
followed by treaties with other governments. The opponents 
of the Bakufu, or Shogun government, violently opposed the 
new treaties and used this action of the government as an 
argument in favor of the overthrow of the power of the 
Shogun and restoration of the Mikado to his ancient auth- 
ority. Though apparently reactionary in these teachings and 
purposes, they have been real leaders in the wonderful awaken- 
ing which has followed. Not only has the Mikado been re- 
stored to his ancient authority, but he has been far more 
active in promoting intercourse with the outside world and 
causing the youth of Japan to be instructed in the learning 
of the west than the Bakufu had been. As a result of the 
destruction of the power of the Shogun the whole system of 



JAPAN 261 

which he was a representative, and which held such complete 
dominion for two centuries and a half, has been swept away 
and a reconstruction of the social system has followed. The 
power of the great Daimios, amounting almost to sovereignty 
in their provinces, has been completely broken, and the mili- 
tary order has been abolished. At the time of this revolution 
the whole population numbered about 34,000,000, of whom 
about 2,000,000 belonged to the Samurai. At the head of the 
nobility stood the Shogun with a large army of retainers and 
great estates. Next came the Daimios, great landowners, 
with their military feudatories. Of Daimios in 1862 there 
were 255, classified as follows, three Sanke, descended from 
the three youngest sons of Iyeyasu, on whom he conferred 
great fiefs. Next thirty-six Kokushiu then seventy-five To- 
zama and lastly 141 Fudai. These were ranked according to 
their revenues measured in Koku of rice, a measure equal to 
a trifle less than five bushels. The revenues of the different 
Daimios ranged from not less than 10,000 to more than 
1,000,000 Koku of rice. Next came the Hatamoto, immediate 
vassals of the Shogun, with incomes ranging from 500 to 
9,999 Koku, having from three to thirty vassals each and 
filling many offices of state. They numbered about 80,000 
families. Then the Gokenin. The Samurai were exempt 
from taxes and privileged to wear swords. The common 
people were divided into Hiaknsho, peasants, Shokonin — 
handcrafts men — and Akindo — shopkeepers. Outside and 
still below these were the Etas (unclean) and Hinin — paupers. 
The above classification does not include the Mikado and the 
Kuge, or old court nobility, higher in rank but wanting in 
actual power and revenue. Of the Kuge 155 families were 
recognized. Though regarded as superior in rank even to 
the Shogun, under the feudal system they lost both their 
incomes and estates, and at the time of the revolution many 
of them were abjectly poor. 

After the fall of the Shogunate the Daimios, partly of their 
own accord and partly on compulsion, surrendered their 
authority to the Mikado. They were mostly retained as 
governors for a brief period, but the old provinces were soon 



262 EVOLUTION OF GOVERNMENTS AND LAWS 

broken up and divided into Ken, governmental districts. On 
giving up their possessions the Daimios and Samurai were to 
receive one-tenth the revenue, and were relieved of the sup- 
port of their Samurai and Yashiki with which they had before 
been burdened. The Samurai were first excused from wear- 
ing swords and afterward forbidden to wear them. Their in- 
comes were greatly reduced and they suffered most of any 
class from the change. Society then became divided and 
classified as follows: 

1. The Mikado. 

2. The imperial family. 

3. The Kuwa Zoku — the nobility including both former 
Kuge and Daimios. 

4. Shikoku, respectable families, old Samurai. 

5. Common people. 

The government after the restoration was in its principles 
essentially the ancient one, with the power theoretically in the 
Mikado but actually exercised of necessity through the instru- 
mentality of ministers and bureaus. The great council of 
state consisted of three ministers, at whose sitting the Mikado 
presided, and this was the supreme legislative and adminis- 
trative authority. 

Ten departments of government were established, over 
each of which a minister presided, namely, Foreign Affairs, In- 
terior, Finance, War, Marine, Education, Worship (afterward 
abolished), Public Works, Justice and Imperial Household. 
The country was divided into three Fit — chief towns — seventy- 
two Ken — districts — A Han — the Riukiu Islands — and the 
colony of Yezo. Over each Ken there is a governor. 

The restoration of the Mikado was soon followed by a 
demand for popular representation in the government and a 
constitution limiting the powers of the various departments. 
In 1878 provision was made for local assemblies in the prov- 
inces. The qualifications for electors were that they should 
be males of the age of twenty years and pay a land tax of 
five dollars — voting to be by ballot. These assemblies proved 
so satisfactory that on February 11, 1889 the Mikado promul- 



JAPAN 263 

gated a constitution to take effect the following year on the 
convening of the Diet for which it provided. 

The most important provisions of the constitution are as 
follows : 

"The Empire of Japan shall be reigned over and governed 
by a line of Emperors unbroken for ages eternal." 

The succession shall be to imperial male descendants ac- 
cording to the imperial house law. 

The Emperor exercises legislative power with the concur- 
rence of the Imperial Diet, which he convenes and dissolves. 
In cases of urgency, when the Diet is not in session, Imperial 
ordinances may be promulgated to have effect until the next 
session of the Diet. 

The Emperor determines the organization of the adminis- 
tration, appoints and removes civil and military officers and 
fixes their salaries. He commands the army and navy, de- 
clares war, makes peace and concludes treaties. He confers 
titles, ranks and marks of honor, grants pardons and com- 
mutes punishments. 

The second chapter provides that the conditions necessary 
for being a Japanese subject shall be determined by law, that 
subjects may be appointed to civil and military offices equally, 
are amenable to service in the army and navy, are at liberty 
to change their abode within legal limits, shall not be ar- 
rested, detained, tried or punished unless according to law by 
judges determined by law, that houses shall not be entered or 
searched without consent except in cases provided by law, 
that the rights of property of Japanese subjects shall be in- 
violate and that within limits not prejudicial to peace and 
order they shall enjoy freedom of religious belief, that within 
limits of law they shall enjoy freedom of speech, press and 
public meetings. All these provisions apply to the army and 
navy, except as modified by the laws and rules governing them. 

The Imperial Diet established by the constitution consists of 
an upper and lower house. The House of Peers is composed 
of members of the Imperial family, of the orders of nobility 
and persons nominated thereto by the Emperor. The House 
of Representatives is composed of members elected by the 



264 EVOLUTION OF GOVERNMENTS AND LAWS 

people according to law. Every law requires the consent of 
the Imperial Diet. 

Proposed laws may be initiated by the Emperor or either 
house. The Diet shall be convened every year and sessions 
shall last three months, but may be prolonged by Imperial 
order, and may be convoked in extra session by Imperial 
order. Sessions of both houses shall begin and end together. 
When the House is dissolved the peers must be prorogued. 
After dissolution of the House of Representatives a new 
House must be convoked within five months. No debate or 
vote can be had in either house unless one third of all the 
members are present, and a majority decides. Deliberations 
must be public, unless secret sessions are demanded by the 
Government. Each house may enact rules for its government, 
and members shall not be held to answer elsewhere for expres- 
sions or votes given in the House. During a session members 
are privileged from arrest, except for flagrant offenses, un- 
less with the consent of the House. 

The Ministers of State and Delegates of the Government 
may at any time take seats and speak in either house. Minis- 
ters of State shall give their advice to the Emperor and be 
responsible for it. All laws and ordinances require the coun- 
ter-signature of a Minister of State. 

A Privy council, whose powers are not defined, is recog- 
nized, to deliberate with the Emperor on important matters 
of State. "The Judicature shall be exercised by the courts 
of law according to law in the name of the Emperor. The 
organization of the courts of law shall be determined by law." 

Judges shall be appointed from qualified persons and hold 
office during good behavior. Trials shall be public unless ex- 
ceptional circumstances demand secrecy. New taxes or 
changes in old ones can only be made by law, and national 
loans must have the consent of the Diet. 

Projects for amending the constitution may be submitted by 
Imperial Order, but must have two thirds of the members 
present and receive the vote of two-thirds of those present. 
The Diet cannot modify the Imperial House law, the consti- 
tution cannot be modified by the Imperial House law, and no 
modification of either can be introduced during a Regency. 



JAPAN 265 

The changes in the form of the government afford some 
indication of the real progress made by the Japanese people 
in the last half century. It is unique. A nation which had 
lived in what may, as compared with the lot. of other nations, 
be fairly designated as profound peace for two hundred and 
fifty years, suddenly became thoroughly dissatisfied with its 
internal system and external relations. The tottering Shogun 
government opened the ports to foreigners. Its enemies took 
advantage of the prevailing prejudice against foreigners and 
Christians to overthrow the Shogun. This accomplished and 
the Mikado restored, not only were the old treaties ratified, 
but new and more liberal ones were made. The whole military 
class was destroyed, as a class, yet following that destruction 
the military spirit has been aroused, and marvelous advance- 
ment in the organization of army and navy followed, civil 
wars accompanying the change were quickly terminated, and 
whatever the impulse prompting the action of either party, the 
result is a determined effort to produce a better form of 
government and improved social and economic conditions. 

No people on earth have manifested such a willingness to 
learn and profit from the instruction of foreign people as the 
Japanese during the last fifty years. Not only have they 
established numerous schools throughout the empire, in which 
foreign as well as native teachers are employed, but many of 
the flower of Japanese youths have been educated in the lead- 
ing universities of Europe and America. Nor has the purpose 
been merely to gain knowledge beneficial to the government or 
the ruling class, but on the contrary everything useful to the 
people as well as tending to the strength and standing of the 
nation has been eagerly sought after. The recent wars with 
China and Russia clearly demonstrate the marked progress 
made in the art of war, while the arts of peace have been 
cultivated with avidity, and national pride and military spirit 
have become correspondingly active. The progress has been 
strictly Japanese. It has not been induced by any influx of 
2 dominating superior race nor by any foreign directing hand. 
The people of Japan, living under a form of government 
which in theory was an extreme representative of despotism, 



266 EVOLUTION OF GOVERNMENTS AND LAWS 

have reached out after wisdom wherever they could find it, 
have taken home the lessons they have learned and assimi- 
lated foreign ideas to Japanese conditions with marvelous 
rapidity. Under an absolute despotism the spirit of progress 
has developed with such strength as to rule the rulers. 

The labors of progressive Japanese have been recognized 
and their counsel followed more readily than those of re- 
formers in republican America. Of all the nations of the 
earth the Japanese have in the last half century been the most 
progressive, yet the multitude of common people are still ex- 
tremely poor, and the problems confronting the government 
and people are now no, less complicated and perplexing than 
heretofore. The basis of this progress it must be clearly ap- 
parent did not lie in the genius of their government. Nor 
can it be attributed to the effect of the teachings of Christians, 
for in no country has less progress been made. Indeed one 
of the forms of agitation preceding the new development was 
for a restoration of the ancient religion, Kami worship or 
Shintoism. Much of the learning and customs of the Japa- 
nese was borrowed from China. The teachings of Confucius 
had long been studied, and the form of government and or- 
ganization of society were moulded to a great extent by them. 
Buddhism had many followers. The constant inculcation in 
the minds of the children of the duty of obedience to parents 
till their death and of worshipful submission to the paternal 
authority of the Emperor, which furnished the foundation of 
Chinese civilization, seems to have developed happier domestic 
conditions in the islands than on the continent. Notwith- 
standing the effort to return to the ancient religion and the 
ancient form of government, rapid changes followed, result- 
ing in the admission of light on all questions, the emergence 
of the Mikado from that seclusion in which he had been re- 
garded more as an object of religious veneration than a ruler 
to be obeyed, to be seen, known, advised and consulted with 
by his subjects, and in breaking down the barriers which ex- 
cluded Christianity. 

Though there were some violent dissensions in the early 
years of constitutional government in Japan the trend toward 



JAPAN 267 

settled conditions of order has been continuous. During the 
first twelve sessions of the diet, extending over a period of 
eight years, there were twelve dissolutions, but during the 
next thirteen sessions, extending over a period of eleven years 
there were but two. During the first eight years there were 
six changes of cabinets; while during the next eleven years 
there were but five. 

Authorities 
Arthur May Knapp : Feudal and Modern Japan. 
Wm. E. Griffs: The Mikado's Empire. 
Count Okuma: Fifty Years of New Japan. 
J. J. Rein : Japan. 
Toyokichi Iyenaga : The Constitutional Development of 

Japan. 
Foreign Constitutions. 



CHAPTER XII 



Turkey 



The Turkish race, that now dominates the country which 
was the seat of the early germs of western civilization, made 
its first appearance, so far as is known to history, in central 
Asia, where Chinese accounts locate it about 180 B.C. In the 
time of Justinian the Turks established a large empire with 
their chief seat in the vicinity of the Altai Mountains. The 
mode of life of the people was mainly nomadic, and the do- 
minion established was not enduring. In course of time the 
tribes became scattered, and under pressure from Mongol ene- 
mies early in the thirteenth century one of them passed through 
Persia into Armenia. Having aided the Seljuk emperor in a 
battle with the Mongols, it was allowed to settle on the Byzan- 
tine frontier. On the fall of the Seljuk Empire Osman, chief 
of this particular tribe, succeeded in extending his power over 
kindred tribes scattered throughout Asia Minor, and in 1301 
began to coin money and to have the public prayers read in 
his name as monarch. From his accession to power the 
modern Turkish empire dates. Like most founders of 
despotisms he was a man of capacity and morals superior to 
most of his contemporaries, and devoted his energies with 
singular disinterestedness to the establishment of order and 
justice, as well as to military operations against his enemies. 
He combined with the religious zeal of the devout Moslem and 
its characteristic military spirit great generosity and love of 
justice. He was devoid of avarice, and on his death his 
wealth was found to include only two or three suits of clothes, 
a few weapons, some horses and a flock of sheep. His ad- 
ministration of justice was so far superior to that of the 
Greek emperor that the subjects of the latter went to him 
for protection. For a century the Ottoman Empire was vigor- 
ously administered and its boundaries extended by the descend- 

268 



TURKEY 269 

ants of Osman, till the reign of Bayazid I, when the Tartar 
hosts under Timur overran the empire, annihilated Bayazid's 
army and took him prisoner in 1403. Timur withdrew and 
Muhamed, son of Bayazid, who died in captivity, restored the 
empire. In 1453 Muhamed II besieged and took Constan- 
tinople and put an end to the Roman Empire of the east, which 
had dwindled to a mere shadow. In 1481 a Turkish army 
crossed the Adriatic into Italy and stormed Otranto, which 
however they were not able to hold. Under his successor, 
Bayazid II, the Turks won their first great naval victory 
off Sapienza over the Venetians. The empire continued to 
grow until the reign of Suleyman I, under whom it reached 
its greatest extent and power, but also met with the best or- 
ganized and most determined resistance. From Constanti- 
nople the Sultan ruled in Europe almost to the gates of 
Vienna ; in Asia beyond the Tigris, and in Africa from Egypt 
to Algiers. 

Starting with Osman in 1301 and continuing till the death 
of Suleyman in 1566 the Turks had a succession of remark- 
ably vigorous and successful rulers. The degeneration and 
decay, which usually manifests itself so quickly in the progeny 
of absolute monarchs, did not appear, but Suleyman is given 
the character of one of the best and most accomplished rulers 
of his age, and for forty-six years his vast dominions felt the 
vigor of his untiring energy. Although his reign was sullied 
by his execution of his brother-in-law, whom he had made 
grand vizier, and by other arbitrary executions, and by great 
barbarities committed by his army during the siege of Vienna, 
such things were characteristic of that age. The Turkish 
Empire then included all the principal seats except Rome of 
that ancient civilization which we have inherited. Chaldea, 
Babylon, Nineveh, Egypt, Phoenicia, Greece, Carthage, Pales- 
tine, Constantinople, all Asia Minor and most of the Greek 
islands were subject or tributary to the Sultan. The ruler 
was descended from a barbarous tribe of central Asia through 
the male line, intermixed with more polished races through 
the females. He ruled entirely in accordance with the theory 
of government established by Mohammed and the Caliphs. He 



270 EVOLUTION OF GOVERNMENTS AND LAWS 

was absolute in the sense that his orders must be obeyed, and 
that he could not be called to account for any act by any con- 
stitutional authority. The Sultans have in fact at all times 
exercised arbitrary power, and have put to death without trial 
such persons as they chose, when they could find instruments 
to execute their will. In the administration of the govern- 
ment, however, the theory is not arbitrary power but divine 
law as declared in the Koran. All questions in courts of 
justice are to be determined by the law declared by the 
Prophet, when such can be found, and in cases where the 
Koran furnishes no rule, the precedents established by the 
Prophet and the early Caliphs are of great authority. 

The feudal system, which was already declining in western 
Europe in the time of Osman, never gained much hold in the 
territory included in the Turkish empire. As a result of the 
Crusades it was established and maintained at Jerusalem dur- 
ing the dominion of the Franks, but expired after they were 
driven out. The spirit of the Koran, following that of the 
New Testament in this respect, is one of equality, and no order 
of nobility existed in the empire. Equality however referred 
only to free males. Slavery was recognized, and women 
were regarded as inferiors. Polygamy has always been al- 
lowed, but in fact is only practiced by a very small number 
of the people. The teachings of the Koran constantly magnify 
the value of the future life and the future joys of the true 
believers who are saved and the frightful torments of the 
damned. The heaven offered is a sensual one, fitted to the 
low instincts of the Arabs of his time. Mohammed taught 
his followers to despise the things of this world, and while he 
made comparatively little effort to perfect a governmental 
system, what he did in that line was enjoined as a religious 
duty and became at once binding as a civil and religious duty. 
Herein lies a marked contrast between the teachings of Jesus 
and those of Mohammed. Jesus announced the moral law 
and the necessity for its observance in order to gain future 
happiness, but made no attempt to promulgate a code of civil 
law. Throughout the whole history of the Turkish empire 
the religious influence has been of prime importance in mould- 



TURKEY 271 

ing public sentiment and private character. At the time of 
Suleyman's reign Turkey was at least one of the most ad- 
vanced nations in agriculture, manufactures, internal com- 
merce and in its schools and administration of the laws. Its 
theory of government and code of laws were however un- 
progressive, and while the government of today may not be 
distinctly worse than that under Suleyman, it appears to be 
so by comparison with the Christian nations. 

From the reign of Suleyman the fortunes of the Turks 
began to wane. His son and successor Selim II was a weak 
debauchee, the first of the line who shrank from the dangers 
of war and preferred the pleasures of the palace. Murad III 
who succeeded him had all the vices and weaknesses of his 
father, and the administration fell into the hands of corrupt 
favorites. The Janissaries, to whom as the first regular stand- 
ing army of Europe was due much of the credit of the vic- 
tories under preceding reigns, manifested a disposition similar 
to that of the old Praetorian guard of the Romans. They 
mutinied on several occasions and compelled compliance with 
their demands. Here followed a succession of weaklings and 
in 1622 Osman, who sought to free himself from the Janis- 
saries, was deposed and soon after murdered by his vizier 
whom he had deposed. 

Murad IV, who ascended the throne in 1623, had the old 
time vigor of the Osmanlis. He caused the leaders of the 
mutinous Janissaries to be beheaded, and proceeded to purge 
the administration of its corrupt elements by causing all such 
as he deemed necessary to be put to death. He was a re- 
former, who carried out his reforms by the methods of the 
despot. His successor Ibrahim again exhibited the weakness 
and folly of a princely debauchee. After his time there were 
examples of vigorous administration by able grand viziers, 
but the Sultans were generally weak. Mahumed II — 1808- 
1839 — exhibited more vigor and in 1828 destroyed the rebel- 
lious Janissaries, who had so often disturbed the peace of 
the capital and dictated terms to the Sultan and his ministers. 
With the growth of the power of Russia that of Turkey has 
correspondingly waned. The evils of its despotic system and 



272 EVOLUTION OF GOVERNMENTS AND LAWS 

the blighting influence of its narrow fanaticism have pre- 
vented that development and progress which has been so gen- 
eral in Europe, and instead of its position as the first power 
in the time of Suleyman, it is now looked upon as one of the 
weakest and worst governed nations of Europe. Neverthe- 
less modern ideas are permeating the empire. In 1876 a 
liberal constitution was promulgated, but not given effect. 
On July 24, 1908, after a bloodless revolution the constitution 
of 1876 was restored. Turkey's European possessions have 
been repeatedly curtailed and in 191 2 Italy had forcibly taken 
a part of her African possessions, and the allied Balkan states 
and Greece have waged successful war and inflicted crushing 
defeats on her, further curtailing her hold on Europe. 

Prior to the revolution of 1908 the governmental system of 
Turkey was a theocratic despotism, hereditary in the family 
of Osman. The Sultan is still the spiritual head of the Moslem 
world, but under the new constitution his temporal power is 
that of a constitutional monarch. A ministry responsible to 
the Turkish parliament, instead of to the Sultan, has been 
established. The grand vizier, named by the Sultan, pre- 
sides over the council of ministers, which is made up of the 
Sheik-ul Islam and the ministers of home and foreign affairs, 
war, finance, marine, commerce and public works, justice, 
public instruction, evkof, grand master of ordnance and 
president of the council of state. The Sheik-ul Islam is the 
head of the Ulema and representative of the Moslem Hier- 
archy, being nominated by the Sultan with the approval of 
the Ulema, the general body of doctors of Mohammedan law. 
The importance of the religious establishment is disclosed by 
the vast possessions of the mosques and the fact that all the 
Moslem schools are connected with the mosques, and the 
government through the minister of public instruction and 
board of censors exercises a censorship over all the books used 
and branches taught in the schools. This censorship has at 
times also been extended to the Christian schools in Armenia 
and elsewhere, and the use of books inculcating doctrines 
deemed dangerous has been suppressed. The minister of 
evkof is at the head of the department having charge of 



TURKEY 273 

property held by the mosques either for religious uses or in 
trust in whole or in part for uses declared by the donors. It 
is estimated that between one-third and one-half of all the 
property in the empire is held by the mosques. The admin- 
istration of the mosque revenues and the execution of the 
various trusts on which much of the property is held render 
the department of evkof one of the most important of the 
government. For administrative purposes the empire is di- 
vided into vilayets (provinces), over which a vali (governor), 
is appointed. These are divided into sanjaks or mutessariks, 
which are subdivided into kazas, which are again subdivided 
into nahies. The chief officers under the valis are styled re- 
spectively mutessarifliks, kaimakams and mudirs. The valis 
and mutessarifs bear the title of pasha, and all but the mudirs 
are appointed from Constantinople. These are named by the 
valis. All these officers exercise both judicial and executive 
functions and, except the mudirs, are mostly chosen from a 
place other than that where they rule. Each of them has a 
council, composed of members of the different communities, 
with whom he advises as to matters of detail. The character 
of the local administration is directly dependent on the char- 
acter and capacity of the vali, who is a local autocrat. The 
collection of the revenue is farmed out to the highest bidder, 
a system always productive of oppression and dishonesty. 
The authority of the different officials is without definite limi- 
tations and naturally is irregularly and oppressively exercised. 
No efficient system of checking the accounts of officials who 
handle the public revenue exists, and the Turkish officials are 
generally rated as corrupt and avaricious. The Moslem popu- 
lation is of course wholly subject to the official system above 
outlined, but foreigners settled in the country are by treaty 
stipulations exempted from the jurisdiction of the local courts, 
and cases between themselves are heard before the consuls of 
their respective governments. Cases between a Turk and a 
foreigner are heard before a mixed court. Before the revolu- 
tion military service was compulsory only on Moslems. It is 
now compulsory on all Ottomans. There are many schools 
maintained in the Christian communities of the Greeks, Ar- 



274 EVOLUTION OF GOVERNMENTS AND LAWS 

menians and Syrians, some of which afford a good range of 
studies when not restricted by the censorship, which the fan- 
atical Moslems at times exercise. 

Under the early caliphs the schools were not merely for 
the purpose of propagating a knowledge of the Koran, but 
there was an unrestrained desire for improvement in the 
knowledge and use of language and of the sciences. Much 
was borrowed from Greeks and Romans, and while the 
superiority of the Koran over all other theological teachings 
was maintained, the search after truth outside its covers was 
stimulated rather than suppressed, but from the tenth century 
the orthodox Sunnites, who still maintain their ascendency in 
Turkey, have most successfully inculcated profound rever- 
ence for the established faith and stifled all tendencies to 
freedom of thought and original investigation. The princi- 
pal school of Turkey is the University of Constantinople. 
Most of the students are said to come from the poorer classes, 
and enter this school after having received primary instruction 
in the local schools sufficient to enable them to read, write, 
count, and repeat the Koran. They are first taught classical 
Arabic grammar and then the dogmas of Islam. The Koran, 
traditions of the Prophet and the Sunna are expounded by the 
teachers, and the pupil is given some instruction in the prin- 
ciples of government as administered in the courts. On con- 
clusion of his course the scholar goes out with his certificate 
to find a place as a teacher, preacher, cadi or mufti or in some 
other governmental post. The great corporation of the 
Ulema, of which he has become* a part, is usually able to find 
him a place without difficulty, for there are not nearly enough 
graduates to fill all the positions. The purely religious offices 
of imam or khatib are not given exclusively to students and do 
not confer a place in the hierarchy or special social status, but 
the cadi, local judge, receives his appointment from the gov- 
ernment and is a person of importance. In every place of 
any importance there is at least one cadi, who tries and decides 
all causes. From his decision an appeal lies to the mufti, who 
reviews the questions of law only. These officers are to some 
extent independent of the central authority, and the spirit of 



TURKEY 275 

religious zeal and common interest, added to the great local 
influence gained by them by reason of their superior learning 
and judicial functions, renders the Ulema a power which no 
Sultan has ever been able to ignore. It was a powerful factor 
in the revolution of 1908. 



CHAPTER XIII 

- 

Greece 

We know the Greeks better than any other ancient people 
besides the Hebrews, mainly because more of their literature 
and of the records of their doings have come down to us 
than from any other. Their language was the vehicle through 
which we received the new testament, and their culture has 
been preserved and transmitted to us in many ways. Though 
few in numbers at all times and operating in a limited field, 
their intellectual activities were such that their works are still 
worthy of close study and full of instruction. In govern- 
ments and laws they furnish experiments on a small scale of 
many schemes of social organization. Unlike their oriental 
neighbors, they adhered to no beaten path but were full of 
originality and invention. No religious creed enjoined loy- 
alty to a particular form of government or imposed its laws 
on them. No ruler, prior to Alexander, was able to establish 
his authority over all. 

Though much of tradition and more of fable concerning 
the early inhabitants of Greece have come down to us, it is 
sufficient for our purpose to know that in the earliest times, 
concerning which we have any light, there were movements 
of people from northern Asia Minor into Greece and that 
Phoenician traders settled on the coast. While Homer writes 
of kings, and the Greek traditions name early kingdoms, the 
extent of each was so small that the name seems illy fitted. 
The characteristics of the early organizations are analogous 
to those of tribes rather than states. The king was a chief, 
whose authority was fixed partly by custom and partly by 
personal capacity to lead. 

The most marked peculiarity of the development of the 
early Greek societies was the tendency to segregation and to 
build cities. Not only in Greece proper but throughout the 

276 



GREECE 277 

Greek islands, the coast settlements in Asia Minor and on 
the continent of Europe, each settlement developed its city of 
more or less size, with so much adjacent land as was neces- 
sary for its support, and maintained its petty government, 
independent of every other city or state. Though the form 
of government was in the earliest times usually monarchical, 
most of the petty kings were content to rule over single cities 
and rarely attempted conquests beyond the lands used by their 
people. The desire to hold other cities by force seems to have 
been almost unknown, though there were instances of the ex- 
action of tribute. The island of Crete may be mentioned as 
an exception. The authority of Minos and other of its kings 
is said to have extended over the whole island, and the ro- 
mantic tale of Theseus relates that Athens was forced to pay 
tribute to Minos until Theseus liberated it. How much of his- 
tory and how much of fable is contained in accounts of these 
persons it is impossible to determine. 

In the early Greek communities the king consulted the elders 
in matters of public interest, and matters of first importance 
were submitted to and decided by a popular assembly. Poly- 
gamy was not allowed, but slavery existed from the earliest 
times till the subjugation by the Romans. As our accounts 
of the first Greeks come through themselves, it necessarily 
follows that the record starts with a people considerably ad- 
vanced in knowledge and the arts. That much of their 
culture was borrowed is conceded, and credit is given the 
Phoenicians for their alphabet. 

Sparta 

The most peculiar and enduring government was that de- 
veloped at Sparta. The early Dorian settlements in the mid- 
dle valley of the Eurotas in Laconia, forming a cluster of 
villages, developed into the Spartan state. When these set- 
tlements were first made and just what comprised the king- 
dom of Agamemnon, whose fame may rest far more on the 
vivid imagination of Homer than on historic facts, is un- 
known. The historic period is generally regarded as dating 
from the time of Lycurgus, about 900 B.C. The elements 



278 EVOLUTION OF GOVERNMENTS AND LAWS 

making up the Spartan state were, i, The Citizens, who 
were Dorians, 2, The Perioeci, who dwelt about the city in 
Laconia and were landholders, but given no voice in the gov- 
ernment, and 3, The Helots, who were serfs of the state, 
bound to the soil and compelled to till it for the Spartan own- 
ers, to whom they were forced to yield a large share of the 
entire produce. These were allowed to have families, could 
not be sold out of the country and fought in the wars. 

At the head of the state, though with little real power, were 
two hereditary kings, who commanded the armies in war. 
The council of elders (gerousia or senate), was made up of 
twenty-eight members, elected by the people from amongst the 
citizens over sixty years of age, who then held for life, and 
the two kings, making in all thirty. The senate formulated 
public measures and Submitted them to the general assembly 
of the people for approval or rejection. It was also the great 
court of justice. The institution of the Ephors is said to have 
been established after the time of Lycurgus. They were five 
in number, elected annually by the people, and had authority 
to call all public officers, even the kings, to an account. It 
was they who had power to make war or peace, and in time 
they came to be the chief power in the state. The main 
design of the people was to restrain the power of the kings 
through the Ephors. 

The central idea of all the Spartan institutions was mili- 
tary. A Spartan citizen had nothing to do with any trade or 
industrial occupation. The Perioeci and Helots performed all 
the labor of the state. The Spartan was raised a soldier, and 
from childhood subjected to exercises and training calculated 
to develop physical strength and endurance as well as courage 
and military discipline. Girls, who were to be the mothers 
of soldiers, were trained similarly and exercised in running, 
wrestling, boxing and throwing quoits and darts. The mili- 
tary spirit was inculcated in the females, and they became the 
censors of the actions of the soldiers. There was great 
freedom of association of males and females among the 
young, and nowhere else among Greeks were women treated 
with such high respect. 



GREECE 279 

A peculiar feature of Spartan life was the public mess, to 
which all contributed and which all were bound to attend, not 
excepting the kings. The members were distributed to tables 
in parties of fifteen, selected by ballot. The fare was plain 
and partaken of by all alike. Especial attention was paid to 
the organization of the army as well as to the development 
of the individual soldiers. The sole aim of Spartan policy 
being to develop its military power, the moral tone was neces- 
sarily low. At birth the boys were inspected by the elders of 
their tribe and, if found deformed or puny, were exposed so 
that they perished. The strong and sound were regarded, not 
as subject to the guidance of their parents, but of the state. 
They were early accustomed to hardships of every kind for 
the purpose not merely of giving them strength and endur- 
ance, but also courage and self-reliance. At the age of seven 
they were assigned to classes and subjected to constant and 
severe discipline. Education did not lead to literature, art or 
any useful calling, but to war alone. It is most remarkable 
that, with no application to any useful labor, the Spartans 
through so many years should have maintained their physical 
vigor. Athletic exercises were doubtless very beneficial in 
the main, but the violent strains to which youths were sub- 
jected often resulted in crippling or even killing them. They 
were also subjected to cruel beating as a religious rite, often 
resulting in death. This was said to be for the purpose of 
inuring them to pain. In war the duty of the soldier was 
to conquer or die. No circumstances whatever were recog- 
nized as allowing surrender or retreat, and one who escaped 
from a lost battle was disgraced and treated by the whole 
community, men, women and children as infamous forever 
after. While the Helots and Perioeci tilled the soil, tended 
the flocks and performed all useful labor, the ruling class 
were always dwelling in a military camp under strict and con- 
stant discipline. Some attention was paid to oratory and the 
use of language, brevity and point being the excellences 
mainly sought. As the lands were parcelled out among the 
people, and no one was allowed to engage in any business by 
which wealth could be accumulated, there was of necessity a 



280 EVOLUTION OF GOVERNMENTS AND LAWS 

remarkable equality of condition, though the kings were al- 
lowed much larger possessions than the rest. The Spartans 
extended their power in the Peloponnesus at an early time, 
but did not follow a policy of conquest. The purpose of their 
military system was defensive rather than offensive. Not till 
after their people had become corrupted, during the Persian 
wars, did they rule over subjugated communities by means of 
Spartan governors and garrisons. This was soon followed by 
the rise of the Macedonian power under Philip, which termi- 
nated the independence of Sparta as well as the other Greek 
states. For more than 500 years this state maintained its 
unique character and the integrity of its institutions. 

Its long continuance is clearly attributable to the intense 
devotion of the citizens to the preservation of the state. 
Patriotism here was in fullest bloom. Each individual deemed 
the state entitled to all his efforts while living and to the 
sacrifice of his life when necessary. Nowhere else has the 
spirit of self-sacrifice been so constantly maintained or at so 
high a pitch, yet this devotion was not prompted by love of 
man nor of all the people composing the state, nor of the 
Spartan citizens as individuals. It was devotion to that body 
of men of which the individual was a part. To foster this 
spirit parents rejoiced in the death of sons who fell bravely 
fighting, and mourned over and reviled those who fled in 
safety. The spirit constantly cultivated was one of hardness, 
but long singularly free from avarice and selfishness. The 
Helots were cruelly treated, even to systematic assassination. 
The natural affections were stifled to permit the destruction 
of weak offspring. The system was rigid. It admitted of no 
great expansion and aimed at no intellectual elevation, no 
development of science or philosophy. Its one sublime ideal 
of devotion to the public was confined to the narrow limits of 
Sparta and not only wanting in love for others, but its high- 
est purpose was the overthrow of enemies in battle. 

In order to preserve the integrity of his system, Lycurgus, 
Sparta's great law-giver, prohibited foreign travel, except in 
the interest of the state, and excluded all foreigners, and 
foreign commerce as well, from the city. To maintain equality 



GREECE 281 

he perpetuated poverty. Children were regarded as children 
of the state, and the boys were raised together under a train- 
ing which inculcated craft and courage. Their clothing was 
scanty, and at the age of twelve they were deprived of all 
but a single upper garment a year. For beds they were al- 
lowed to gather reeds, and slept together in companies. The 
command of the companies was given to a youth who had 
been two years out of his class, chosen by an inspector. A 
principal business of the elders was watching the conduct of 
the boys and giving them instruction. Modesty in the modern 
sense was not esteemed a virtue. At certain festivals and 
games the young of both sexes appeared in scanty costume in 
the presence of each other and of the elders, but all were 
required to conduct themselves with strict decency and de- 
corum in all respects. The marriage custom was a forcible 
carrying off of the bride, and the newly married pair were not 
allowed to remain together, but only to meet each other by 
stealth. It was deemed honorable for a feeble husband to 
allow his wife to have children by a man of superior qualities. 
It was believed that this tended to the production of better 
offspring. Marriage was so far compulsory that an old 
bachelor was in disgrace, while the father of children was 
honored. 

Three fundamental laws declared by Lycurgus are men- 
tioned. 1. Not to resort to written laws. 2. Not to employ 
in housebuilding any other tools than the axe and saw. 3. Not 
to undertake military expeditions often against the same 
enemy. 

Capital offenses were tried before the senate, others by the 
ephors separately or all together. There being no written 
laws, judgment was given in accordance with the sentiments 
of the judge as to the merits of the particular case. The 
simplicity of the Spartan society and the absence of all com- 
merce with the outside world afforded no basis for an elabo- 
rate system of laws. 

As to the land tenure, although Plutarch states that Lycur- 
gus divided the land into 9,000 shares for Spartan citizens 
and 30,000 shares throughout Laconia for the other inhabi- 



282 EVOLUTION OF GOVERNMENTS AND LAWS 

tants, modern critics discredit the statement. Nor can any 
very definite statement of the law of inheritance be made. 
There were inequalities of possessions among the people and 
recognized titles to land. It was from the produce of their 
estates alone that the Spartan citizens furnished their quotas 
to the public tables. Whenever one became too poor to con- 
tribute his share, he lost his citizenship. 

The military organization started with the enomoty, con- 
sisting of from twenty-five to thirty-six men of about the 
same age under a leader. Two to four of these were com- 
bined into a Pentecosty, of which two to four formed a 
Lochns and the Mora contained 400 to 900 men. The mili- 
tary superiority acquired by the Spartans through their sys- 
tem not only secured their independence, but gained for them 
a predominating influence among all the petty Greek states, 
which they retained until the Persian war. There was a con- 
stant tendency however, for the number of citizens to dimin- 
ish, so that in the time of Aristotle there were only about 
1000. This is attributed to the gradual concentration of the 
title to the land in a few hands. No other Greek state main- 
tained the integrity of its social organization so long, but, 
like every other rigid system which contained no provision 
for changing conditions, in time it lost its early spirit and at 
the same time shut out the invigorating influences of contact 
with the outer world and that spontaneous growth, which can 
only come rapidly under conditions which invite new inspira- 
tions. Advancement comes with new ideals, and to continue 
the ideals must advance as the people move up. Mere perma- 
nency of institutions or conditions evidences stagnation, rather 
than a full and glorious life of progress. 

Athens 

The history of Athens appears mythical and uncertain till a 
later date than that ascribed to the establishment of the Spar- 
tan system. The early Ionian people of Attica were divided 
into four tribes and these again into Phratries and Gentes. 
Each gens was composed of a number of households not, it 
is said, necessarily all related to each other by blood, but 



GREECE 283 

bound together by religious ties, proximity of possessions and 
mutual dependence in protecting common interests. These 
divisions were mainly religious and social. Besides these each 
tribe was divided politically into three Trettys, and each 
Tretty included four Naukraries. Prior to the time of The- 
seus there was no central authority in Attica, each small town 
maintaining its independence. Theseus, who has been in- 
vested by Greek imagination with heroic virtues and mythical 
adventures, appears to be a genuine historic character and to 
have first established the ascendency of Athens over Attica 
and, if any credit can be given to the tale of his adventures 
in Crete, he relieved the people from the payment of tribute to 
King Minos. There is so little reliable history of Athens 
prior to about 750 B.C. that nothing can be safely built on it. 
Codrus is said to have been the last who was permitted to be 
called king, his successors being styled archons and holding 
office for life till Alkmaeon, when the term of office was 
reduced to two years. This continued for seventy years, 
when the office was made annual, with nine archons among 
whom the powers were distributed. Down to 714 B.C. the 
archons were all descendants of Medon and Codrus, but after 
that date any of the eupatrids or nobles became eligible. At 
the expiration of his term of office the archon whose adminis- 
tration was approved became a life member of the senate of 
the Areopagus. The functions of this body were both ju- 
dicial and political. The archons were not of equal authority. 
At the head was the Archon Eponymous, who determined all 
disputes relative to the family and relations in the gens and 
phratry, and was guardian of widows and orphans. He was 
styled the Archon, and from his name the year was desig- 
nated in their chronology. The Archon Basileus heard com- 
plaints respecting offenses against religion and also of 
homicides. The Polemarch was the general and judge of dis- 
putes between citizens and non-citizens. Each of these con- 
ducted certain religious festivals. The remaining six, styled 
Thesmothetae, had general jurisdiction of other matters of 
dispute. In 624 B.C., Draco, then one of the archons, was 
directed to put the laws in writing, so that they might be 



284 EVOLUTION OF GOVERNMENTS AND LAWS 

shown and known beforehand. The famed Draconian code 
was not new laws made by him, but old ones reduced to writ- 
ing. Its severity has often been remarked, but so little of it 
has been preserved that its contents cannot be given or even 
summarized. It was in his time that the judges, called Ephe- 
tae, made up of fifty-one elders of leading gentes, were es- 
tablished with power to judge in certain cases of homicide. 
They sat in three different places, according to the nature of 
the charge and defense, and were permitted to pass a sentence 
less than death according to the justification or excuse, 
whereas it is said that the Areopagus could only condemn to 
death. Peculiar religious ideas connected with the different 
places seem to have produced this system. The constitution 
of such a variety of courts for trial of homicides would seem 
to indicate a great number of such offenses. About 612 B.C. 
Cylon seized the Acropolis and attempted to establish himself 
as tyrant, but failed miserably and many of his followers 
were slain, some at the sanctuaries. 

At the time of Solon the record becomes more clear, and 
we have a more satisfactory account of the Athenian state. 
Plutarch tells us that in Solon's time there were great dis- 
orders in the state. Cylon's attempted usurpation and the 
slaughter of his followers in the sanctuaries left bitter factions 
and aroused superstitious fears. But more deep-seated were 
the troubles arising from the conditions of the people and 
their different views of government. He says, "The inhabi- 
tants of the mountainous part were, it seems, for a dem- 
ocracy; those of the plain for an oligarchy; and those of the 
sea coasts contending for a mixed kind of government, hin- 
dered the other two from gaining their point. At the same 
time the inequality between the poor and the rich occasioned 
the greatest discord, and the state was in so dangerous a 
situation that there seemed to be no way to quell the seditions 
or to save it from ruin but changing it to a monarchy." Of 
the poor debtors some were made slaves, some sold to foreign- 
ers, others sold their children. The greater number determined 
to resist this oppression. Solon was of the eupatrid order and 
had gained great reputation and the confidence of all classes 



GREECE 285 

as a soldier and a citizen. He was made archon in 594 B.C. 
and given authority to reform the laws and remodel the gov- 
ernment. He repealed the penal laws of Draco, except those 
concerning homicide, because of their severity, idleness and 
petty larceny having been punishable with death. A more 
difficult question to deal with was that of the oppression of 
the poor by rich creditors through harsh laws harshly enforced 
by the wealthy class, who held all judicial offices. Not only 
were most of the small estates mortgaged, which was done 
by setting up a stone on the land inscribed with the name of 
the mortgagee and the amount of the debt, but the creditor 
might take the body of his debtor as security and in default 
of payment enslave or sell him. Against this system and the 
merciless and unjust enforcement of it the poor clamored for 
relief. 

The difficulties experienced by the eupatrids in maintaining 
order and enforcing the rights of creditors seems to have in- 
duced them to accord Solon the ample power he was given 
to reform the laws, he being one of their own order. The 
poor also clamored for an equal division of the lands. This 
Solon denied them, but he gave sweeping relief to the debtors. 
He released all mortgages and removed all the mortgage 
pillars from the land. He discharged all debtors, whose 
bodies were pledged as security, from their debts, released the 
debtors who had been enslaved, and even bought back others 
who had been sold out of the country. He prohibited debtors 
from thereafter pledging their persons as security, and also 
forbade them from pledging or selling their children or un- 
married sisters. For the relief of the other debtors, for whom 
no such security was given, he provided that the minae, which 
before went for seventy-three drachmas, should go for 100 
thereafter, thereby relieving debtors by increasing the legal 
value of the coins. Citizens who had been disfranchised, ex- 
cept those condemned by the areopagus or ephetae or in the 
prytaneum for murder robbery or treason, were restored to 
their former privileges. 

It was in remodelling the official system that Solon's work 
produced the most lasting though not the greatest immediate 



286 EVOLUTION OF GOVERNMENTS AND LAWS 

effect. He began by a new classification of the citizens based 
on incomes. Those having annual incomes of 500 measures 
in wet and dry goods, took first rank and were called Penta- 
cosiomedimini. Those having between 300 and 500 measures 
were put in the second class or equestrian order. Those hav- 
ing 200 to 300 constituted the third class, and all whose in- 
comes were less were placed in the fourth class. The first 
class alone were eligible to the archonship and military com- 
mands. The second were the horsemen, the third the heavy 
armed infantry. These three classes were subject to direct 
taxes on the value of their possessions by a graduated system 
of valuation, having the effect to increase the rate according 
to the size of the estate. The fourth class were not subject 
to direct taxation, and were not eligible to office, but they 
were given what in time proved to be a most important right, 
that of sitting and voting in the general assembly. They 
chose the archons from the first class and on the expiration 
of their terms passed judgment on their conduct, and might 
debar them from taking seats in the senate of the Areopagus. 
He also established a senate of 400 members, made up of 
100 elected by the people from each of the four tribes. All 
citizens, except those of the poorest class, were eligible to the 
senate. The senate considered and formulated matters to be 
submitted to the general assembly, convoked and superintended 
its meetings and executed its decrees. The old senate of the 
Areopagus, made up of past archons whose conduct was ap- 
proved, was retained and given enlarged powers over the 
execution of the laws and the punishment of men of idle and 
dissolute habits. The laws of Solon were inscribed on wooden 
tables, which might be turned round in the oblong cases that 
contained them. Plutarch says some of them were still pre- 
served in the Prytanium in his time. Solon forbade the ex- 
portation of all agricultural produce except olive oil. The 
archons were required to solemnly curse such as violated the 
law. He allowed only such immigrants to become citizens as 
came to reside at Athens permanently and for the purpose of 
carrying on some useful calling. If a father failed to teach 
his son a trade or profession, the son was under no legal 



GREECE 287 

obligation to support him in old age. As the people of At- 
tica had to resort to wells for water, he provided that, where 
there was a public well, all within four furlongs should make 
use of it, but if the distance was greater they must dig for 
themselves. If after digging ten fathoms they found no water, 
they might fill a vessel of six gallons twice a day at a neigh- 
bor's well. He that planted a tree on his ground was to place 
it five feet from the line, and if a fig or olive, nine, because 
of the length of its roots. He that dug a pit or a ditch was 
required to dig it as far from his neighbor's land as it was 
deep. Bees were required to be kept three hundred feet from 
those of a neighbor. Plutarch says, "The most peculiar and 
surprising of the laws is that which declares the man in- 
famous who stands neuter in time of sedition. It seems he 
would not have us be indifferent and unaffected with the fate 
of the public, when our own concerns are upon a safe bot- 
tom, nor when we are in health be insensible to the distempers 
and griefs of our country. He would have us espouse the 
better and juster cause and hazard everything in defense of 
it, rather than wait in safety to see which side the victory will 
incline to." 1 In all marriages except those of heiresses he 
prohibited the giving of dowries and allowed the bride to 
bring with her only three suits of clothes and a little house- 
hold stuff. This included an earthen pan for parching barley, 
which symbolized her assumption of the charge of the house- 
hold. The bride and groom were directed to be shut up to- 
gether and to eat of the same quince. One of the laws 
forbade men to speak ill of the dead. He also forbade reviling 
the living in a temple, a court of justice, the general assembly 
or at the public games. Offenses of this kind were punished 
by a mulct of three drachmas to the person injured and two 
to the public. He introduced the making of wills, but re- 
stricted the right to those dying without children. He re- 
stricted extravagance at funerals and prohibited women from 
tearing themselves, and no hired mourner was allowed to 
utter lamentable notes or do anything else to excite sorrow. 
All citizens were required to attend the public entertainments, 

1 1 Plutarch, p. 185. 



288 EVOLUTION OF GOVERNMENTS AND LAWS 

but prohibited from going too often. The victor at the Isth- 
mian games was allowed a reward of ioo drachmas and at the 
Olympian 500 drachmas. There was a reward of five drach- 
mas for catching a he wolf and one for a she wolf, the 
former being the price of an ox and the latter of a sheep. 
The full text of Solon's code is not preserved. The fragments 
above mentioned indicate something of its general tenor. 
After his laws were promulgated, the senate and archons 
were sworn to observe the laws under penalty of a golden 
statue as large as life, to be erected at Delphi. This seems 
to have been the only sanction they received. Having com- 
pleted his labors, Solon found it too severe a task to defend, 
construe and explain his own work, and thereupon obtained 
leave. of absence for ten years, during which the laws were 
to remain unchanged. 

Solon's system appears to have been insufficient to prevent 
internal discord, for after his return the people again divided 
into much the same factions as before, the mountaineers under 
Pisistratus, the rich of the plains under Lycurgus and those 
of the sea coast under Megacles. Pisistratus, under the pre- 
tense that he had been assaulted, obtained leave to keep a 
body guard of fifty armed with clubs. This Solon opposed 
but without success. Thereafter Pisistratus seized the Acrop- 
olis and succeeded in establishing his authority. His dynasty, 
established 560 B.C., continued fifty years, with two intervals 
however, during which he was driven into exile. Accounts of 
his reign and that of his sons are meagre, but concur in as- 
serting that he ruled largely through the forms which Solon 
had established and with mildness. After Hipparchus, son of 
Pisistratus, was killed by Harmodius and Aristogiton, the 
reign of Hippias his brother was harsh and cruel. 

For favors received from the Alkmoenids, who had been 
driven into exile by Pisistratus, in rebuilding the temple, the 
Delphic oracle played on the superstitious reverence of the 
Spartans, and in answer to every consultation said, that 
"Athens must be liberated." The Spartan reverence for the 
deity supposed to preside at the temple at length caused them 
to send an army to Athens to drive out the tyrant. The first 



GREECE 289 

expedition proved unsuccessful, but the second accomplished 
the object and finally expelled the tyrant. This circumstance 
strongly illustrates the peculiar notions of the Greeks of that 
day. By this expedition the Spartans merely performed what 
they deemed the religious duty of liberating their great rival 
from a tyrant, from which they derived no material advant- 
ages, but suffered some losses of men. After the expulsion 
of the Pisistratids the institutions of Solon, which had not 
been destroyed but used by them as means for the execution 
of their purposes, were restored to vitality with modifications 
introduced by Cleisthenes, who allied himself with the classes 
which had formerly been excluded wholly or partially from 
sharing in the exercise of public functions. He extended the 
right of citizenship, which had been confined to the four Ionic 
tribes, so as to include all freemen. In order to accomplish 
this he resorted to a new division into tribes, which disre- 
garded the ancient gentes and phratries. He divided the whole 
population of Attica into ten new tribes, each of which in- 
cluded a certain number of demes or cantons, in which the 
proprietors and residents were enrolled. The demes assigned 
to each tribe were not all contiguous, and so a tribe did not 
occupy a compact territory. This scattering of the members 
of a tribe and inclusion of all classes of people without regard 
to the ancient gentes tended strongly to unify them. The 
ancient gentes and phratries remained as family and religious 
associations, but without political significance. City demes 
and country were included in the same tribe, and jealousy 
between city and country thereby avoided. Each deme had 
Its local interests, but the tribe as a whole had no interest 
distinct from that of the state, being merely an aggregate of 
demes for political, military and religious purposes. Each 
tribe had a chapel, sacred rites and festivals and a common 
fund for these purposes. The deme was the primary political 
aggregation. It had its demarch who kept the register of en- 
rolled citizens, its collective property, its public meetings and 
religious ceremonies, and its taxes, levied and administered 
by itself. The registry of citizens was corrected at the public 
assembly by inscribing the names of the sons of citizens who 






2QO EVOLUTION OF GOVERNMENTS AND LAWS 

had attained the age of eighteen. Sometimes names were 
expunged from the register, in which case an appeal could be 
taken. Under the new arrangement the public assembly was 
greatly increased in numbers, and the membership of the senate 
was increased from 400 to 500, made up of fifty from each 
of the ten tribes, chosen annually. About this time the prac- 
tice began of choosing the senators by lot. The military 
organization was changed so that ten strategi, generals, one 
from each tribe, were chosen. This did not deprive the pole- 
march of the old constitution of all his power, but the power 
and influence of the strategi steadily increased. A board of 
ten Apodektae, one from each tribe, managed the exchequer. 
With the revival of popular government the senate at once 
became a most important body, exercising a general super- 
vision of the affairs of the city. The political year was divided 
into ten portions called Prytanies; the fifty senators of each 
tribe remaining in constant attendance on the senate by turns 
during one prytany. Each pry t any was divided into five 
periods of seven days, and the fifty senators of each tribe 
into five bodies of ten each. Each body of ten presided in the 
senate for a period of seven days, choosing by lot one of 
their number each day for the chairman, who was called 
epistates, and during his day of office held the keys of the 
Acropolis, the treasury and the city seal. Senators not of the 
prytany might attend all sessions, but were not required to 
do so, except that one from each tribe was requisite to a 
valid meeting. The general assembly was convoked either 
by the senate or the strategi. In later times there were four 
regular sessions during each prytany at which the prytanies 
presided, the epistates putting all questions to vote. 

The exact distribution of judicial power in the time of 
Cleisthenes cannot be stated, but the whole body of citizens 
above thirty years of age was convoked to try persons charged 
with certain public crimes and, when so assembled, bore the 
name of Heliosa or Heliasts. Afterward 6,000 citizens over 
thirty years of age were annually selected by lot, 600 from 
each tribe. Five thousand of these were distributed into 
panels or decuries of 500 each, the remaining 1,000 being 



GREECE 291 

reserved to fill vacancies. When there were causes ripe for 
trial, the Thesmothets or six inferior archons determined by 
lot, which de curies should try and what magistrate should 
preside. Sometimes two declines sat together. In time the 
archons came to be chosen by lot, and any citizen was eligible, 
subject however to an examination into his status as a citizen 
and his moral and religious qualifications. By this time the 
archons had become shorn of much of their power, their 
principal functions being to hold preliminary examinations, 
preside at trials and to pass sentence for petty offenses. The 
strategic however, were chosen, not by chance, but by pref- 
erence of the citizens manifested by a show of hands. The 
date of the adoption of universal eligibility to office is fixed 
as after the battle of Plataea. 

The modifications of the constitution of Solon in the time 
of Cleisthenes stopped short of that full democracy which 
developed later. The archons still retained much judicial 
power, and the polemarch was still a general. They were 
then elected, not chosen by lot. The fourth class of the census 
were still excluded from the principal offices. The senate of 
the Areopagus still retained some of its power, but the popu- 
lar bodies of the senate of 500 and the general assembly be- 
came the dominant forces of the state. 

A peculiar institution, ascribed to Cleisthenes, was the ostra- 
cism, designed to get rid of the contentions of leaders of rival 
factions. Before a vote of ostracism could be taken a case 
was presented to the senate and general assembly. In the sixth 
pry t any of the year these bodies debated and determined 
whether the public Welfare required a vote to be taken. If 
they decided in the affirmative, a day was named, the agora 
was enclosed with a railing with ten entrances for the citizens 
of each tribe, and ten vessels were provided to receive the 
votes, which consisted of a shell or potsherd with the name of 
the person whom the voter desired to banish written on it. At 
the end of the day the votes were counted, and any person 
against whom there were 6,000 votes was ostracized. He was 
allowed ten days to settle his affairs and then required to 
leave Attica for ten years, but he retained all his property and 



2Q2 EVOLUTION OF GOVERNMENTS AND LAWS 

suffered no penalty, nor was he deemed disgraced. It was in 
fact a great distinction to be regarded of so much importance 
as to require ostracism. 

The spread of the Persian empire over Asia Minor brought 
Greeks and Persians in contact in Ionia and elsewhere, and 
the demand for submission, which had been enforced on the 
Greek cities of Asia, was extended to the islands and to 
Greece. The vast resources of the Persian king and the 
prestige of the success of Persian arms were such as to cause 
the king of Macedon and many of the Greek cities, notably 
Thebes, and when the final conflict came, Thessaly, to submit 
to the Persian king and reinforce his army. Democratic 
Athens in its resistance of the foreign despot exhibited in full 
measure the vigor of a free people fighting for their independ- 
ence. The battle of Marathon, fought about twenty years 
after the expulsion of the Pistratids, put an end to the first 
invasion. Under the leadership of Themistocles the Athen- 
ians turned their attention to the sea and began to build ships. 
The policy of Athens in many particulars stood in strong con- 
trast to that of Sparta. The government of Sparta was nomi- 
nally monarchial, but in fact an oligarchy, that of Athens a 
democracy. The Spartans excluded all foreign commerce, the 
Athenians invited it. The Spartans made war on land their 
principal business, the Athenians sought material prosperity 
through peaceful channels, but without neglecting their de- 
fense on land and sea. When the invasion under Xerxes 
came ten years later, the Athenians were prepared with both 
a fleet and an army. Rather than submit they left Attica and 
took their families to Troezen, Aegina and Salamis. The 
fortunate circumstances of the destruction of many of the 
Persian vessels by storms made Greek victory possible on the 
water. Nothing better illustrates the peculiarities of the 
Greeks than their conduct during this war. Want of concert 
of action and the celebration of religious festivals, deemed of 
more importance than defense of their country, left Leonidas 
with his little band to confront the whole Persian host at 
Thermopylae, and this when the situation was fully under- 
stood. The defense made illustrates the extreme of Greek 
courage and devotion. 



GREECE 293 

The Pan-Hellenic congress, convened on call of Sparta and 
Athens on the isthmus of Corinth for the purpose of obtaining 
a union of all the Greeks against the Persians, exhibited 
strongly the want of harmony among the different cities and 
their utter inability to unite even in a case of such extreme 
necessity. Not only did the distant cities in Crete and Sicily 
fail to respond, but Argos remained neutral, and Thebes and 
many other cities espoused the Persian side. The dissensions 
among the leaders, prior to the naval battle of Salamis, would 
have prevented the great victory that followed but for the 
artifice of Themistocles, which induced the Persians to hem 
the Greeks in in the Bay of- Salamis and thus prevent the ships 
of the different cities from scattering. The characteristic 
wrangling and dissension among the leaders while considering 
the course to be pursued, was followed by the no less charac- 
teristic skill, bravery and determination with which the great 
battle was won. The battle of Plataea found Greek confront- 
ing Greek, but with a marked difference of spirit. Those in 
the Persian army were hardly a source of strength to it, ex- 
cept perhaps the Thebans, but the spirit of those who defended 
their country was worthy of all admiration. 

Though Athens had been burned and Attica laid waste, the 
people returned victorious, with a purpose and a system that 
soon made Athens the leading city of the Greek world. The 
development of Athens was not unilateral but multiform. 
Each citizen was not merely invited but required to take an 
interest in public affairs and assume his share of responsibil- 
ity for the public welfare. All avenues for advancement were 
open to each citizen. After the battle of Salamis the fourth 
and most numerous order of citizens, who under the constitu- 
tion of Solon were ineligible to office, were admitted to the 
same privileges as the other three classes. The contact of 
Greeks with Persians exposed the former, not merely to the 
force of the great despotism, but to the insidious influences 
of the corrupt system. The leading citizens in the Greek cities 
were approached by Persian agents with offers of bribes, in 
some cases of money, in others of establishment in power un- 
der Persian protection, and it is a melancholy fact that, even 



294 EVOLUTION OF GOVERNMENTS AND LAWS 

after the great victories of Salamis and Plataea, Themistocles, 
to whom more than to any one else was due the naval victory, 
and Pausanius, the Spartan commander-in-chief at the great 
battle, were corrupted by Persian bribes and died in disgrace. 
Miltiades, the commander at Marathon, fell in a somewhat 
different manner. Having induced the Athenians to place him 
in charge of an expedition, he diverted it to an attack on the 
people of the island of Paros for his own personal ends. He 
was repulsed and in his attempt to get away received injuries 
which disabled him. On his return to Athens he was brought 
to trial for his misconduct and condemned to pay a fine of 
fifty talents; the jurors refusing to pass the death sentence 
because of his great services. That the Athenians were able 
to condemn and punish such a man at such a time indicates 
most superior integrity in their institutions. The corruption 
of Themistocles led to his ostracism about nine years after 
the great victory. At Sparta the treason of Pausanius, who 
had long been in corrupt and treasonable correspondence with 
the Persian king, was not readily believed by the ephors, and 
it was only after the clearest proof of his treason, that an 
attempt was made to bring him to trial. When the ephors 
attempted to arrest him he took sanctuary in the temple of 
Athene Chalcioecus, where he was confined till at the point 
of starvation, when he was removed to die where he would not 
desecrate the temple. Notwithstanding the Spartan contempt 
of money Pausanius received much Persian gold and was 
ruined by it. 

Prior to and during the Persian invasion Sparta had been 
allowed first place in joint undertakings of the Greek cities, 
and a Spartan general commanded at Plataea and a Spartan 
admiral at Salamis, notwithstanding the great superiority of 
the Athenian fleet. After the Persians retired and the Greeks 
followed them to Cyprus and Byzantium the Spartan Pau- 
sanius was still in command. The traitorous correspondence 
of Pausanius with Xerxes occasioned his recall to Sparta for 
trial, and in his absence command of the Greek forces passed 
to the Athenians. This led to the formation of a confederacy 
with Athens at its head, for the protection of the Greek cities 



GREECE 295 

against Persia about 477 B.C. The leading spirit in the for- 
mation of this confederacy was the Athenean Aristides. The 
terms and purposes of the confederacy and its general policy 
were determined by a synod of representatives of the cities, 
which convened at the temple of Apollo at Delos. As the 
head of this confederacy Athens at once took a prominence 
never before attained. It was a confederacy, designed not 
merely to protect the cities on the mainland of Greece and the 
islands of the Aegean sea, but also those on the coast of Asia 
Minor and Thrace as well. From this time till the breaking 
out of the Peloponnesian war the power and commerce of 
Athens grew rapidly. The yearly contributions of the allies in 
time were largely changed from ships and men to payments of 
money, which Athens received. The voluntary character of 
these contributions also disappeared, little by little, and pay- 
ment by the delinquents was compelled by Athens by force. 

In the time of Pericles great modifications of the govern- 
mental system were made, and the archons and various other 
magistrates were chosen by lot. The senate of the Areopagus 
had exclusive judicial power, not clearly defined, and also 
exercised censorship over the habits of the citizens and super- 
vision over the proceedings of the public assembly to prevent 
infringements of the established law. These powers were 
based on a foundation of long usage and liable to great abuse. 
They were greatly curtailed, leaving only power to try cer- 
tain cases of homicide and to impose small fines for minor 
offences. The main judicial power was transferred to the 
popular dikasts in both civil and criminal causes. A very 
common method of trial was by arbitration, and a number of 
public arbitrators were annually appointed, to whom or others 
chosen by the parties, all private disputes were submitted in 
the first instance. If dissatisfied with their decision either 
party might carry the case before a dikast. The regular 
number of a panel seems to have been 500, but for important 
causes more were sometimes taken, and it seems that less 
sometimes sat. These jurors during and after the time of 
Pericles were paid a small sum per diem out of the public 
treasury while serving. At about the same time the indi- 



296 EVOLUTION OF GOVERNMENTS AND LAWS 

vidual magistrates and the Senate of 500 were deprived of 
all judicial attributes except to assess small fines, and the 
laws of Solon were brought down from the Acropolis to the 
neighborhood of the market. The final -and efficient judicial 
power was thus vested in a numerous body of common citi- 
zens, and this was done mainly for the purpose of obviating 
the bribery to which single or a small number of officials 
might be subjected : the Greeks of that time exhibiting a 
marked weakness of character when tempted by money. 

A general power of supervision over the magistrates and 
over the general assembly was vested in seven magistrates 
called Nemophylakcs, who sat along with the presidents of the 
senate and assembly, and whose duty it was to interpose 
whenever any step was taken or proposition made contrary 
to law. It was the duty of the Thesmothetae annually to 
examine the existing laws and make note of any that con- 
flicted, and in the first prytany of the Attic year on the eleventh 
day an assembly was held, at which the first business was to 
go through the laws seriatim and submit them for approval or 
rejection. If a law was condemned by a vote of the as- 
sembly, or if any citizen had a new law to propose, the third 
assembly of the prytany appointed 500 to 1,000 Nomothetae 
from among the 6,000 dikasts to consider the proposed 
change. Previous notice was required to be given by a citi- 
zen having a new law to propose, in order that the time 
necessary for the sitting of the Nomothetae might be meas- 
ured according to the number of matters to be submitted to 
their consideration. Public paid advocates were named to 
defend the existing law, and the mover of a repeal was re- 
quired to make out his case before the Nomothetae. The 
power to enact laws, except a decree applicable to a single 
case, was thus taken away from the general assembly. A 
very peculiar provision was that by which the author of a 
new law was liable to indictment, trial and punishment, where 
the new enactment contradicted a law already in existence 
without expressly repealing it, or where it was otherwise 
defective or mischievous. If the dikastry before whom f he 
author was tried found him guilty, it had the effect of repeal- 



GREECE 297 

ing the new law. The punishment inflicted in this, like some 
other classes of cases, was variable. The prosecutor might 
propose a sentence and the accused might also propose one. 
The dikastry then adopted either one or the other without 
change. If the accused was acquitted, the accuser was liable 
to a fine of 1,000 drachmas, unless one-fifth of the dikasis 
voted for conviction. The author of the law could not be 
punished if the prosecution was instituted after the expira- 
tion of a year, but the law itself might be condemned and thus 
repealed. Publicity, opportunity to produce evidence and to 
be fully heard in argument were characteristic of Athenian 
trials. The number of the jury and modes of trial are gen- 
erally regarded as affording undue weight to oratory, but 
no ancient system is known to us which on the whole worked 
so fairly. Freedom of speech on all matters of public interest 
is a strong proof of the vigor of the democracy. 

The internal system as perfected in the time of Pericles 
continued without great change until the Macedonian con- 
quest, but the situation of the members of the Athenian de- 
fensive league gradually changed, so that in time all but a few 
of the strongest were regarded as Athenian dependencies. 
They were compelled to pay their yearly tribute, which was 
kept at Athens instead of Delphos. The synod, which at first 
determined the course to be pursued in matters affecting the 
public interest, ceased to exercise any authority, and all ques- 
tions were determined at Athens. Toward her new colonies, 
as well as the weaker members of the confederacy, Athens 
assumed imperial powers. Disputes between her dependencies 
or their citizens with citizens of Athens were brought before 
the Athenian dikasts for trial. While this in theory opened 
to all the same forum that the Athenian citizens were bound 
to resort to in contests with each other, in practice it must 
have imposed hardships on suitors residing at a great distance 
as well on the score of expense as of want of familiarity with 
procedure and inability to prove the facts. The excellence of 
the domestic institutions of the head of the confederacy could 
not render palatable arbitrary dictation to the dependencies. 
Hostility against Athens grew up in the subject cities and 



2q8 EVOLUTION OF GOVERNMENTS AND LAWS 

increased in strength as the fear of a Persian despotism grew 
less. The wonderful growth of the democratic city under 
the leadership of Pericles, its commerce, its ships, its wealth 
in public treasuries and buildings and its brilliance in all lines 
of culture and intellectual development, excited the jealousy 
of rival cities and discontent among its dependencies. With 
the growth of Athens and its allied cities, which maintained 
systems of government democratic in their essential features, 
the Spartan leadership was also extended among the oli- 
garchical cities. Though at all periods there were frequent 
wars and much fighting among the independent cities, the 
numbers involved in the conflict were not so great as to 
prevent the increase of population and wealth until the break- 
ing out of the Peloponnesian war. Sparta and her allies on 
one side and Athens and hers on the other, in 431 B.C., en- 
tered on a struggle for mastery, which involved substantially 
all the Greeks of the mainland, the islands and the coast of 
Asia. The struggle became so fierce that each party in turn 
sought aid from the Persians, and leaders on both sides were 
corrupted by Persian bribes. The simplicity of manners of 
the Spartans gave way when brought in frequent contact with 
the orientals, and their generals were found no more proof 
against bribery than those of other cities. The social system, 
however, remained throughout the struggle substantially un- 
changed. The Athenian democracy, notwithstanding the un- 
wise and most disasterous expedition to Sicily, manifested 
most wonderful energy and resourcefulness, and the integrity 
of its institutions was maintained till 411 B.C. when a con- 
spiracy of the oligarchical elements resulted in the rulership 
of a senate of 400 for a few months. This being soon over- 
turned, the democratic institutions were again restored, and 
under them the people manifested renewed vigor and devo- 
tion to the public welfare. The surrender of the city in 404 
B.C. was followed by the establishment of an oligarchy of 
thirty, the spirit of whose rule was in marked contrast to that 
of the democracy. Though in the trial of the generals after 
the battle of Aegospotami there was a departure from legal 
forms, and the generals were condemned to death without a 



GREECE 299 

regular trial, they still had a hearing before the assembly and 
were condemned by a vote of the people by tribes. The 
thirty, however, ordered summary executions without trial, 
and proceeded to get rid of such of the people as they feared. 
Their tyranny was in striking contrast to the formal, free 
and orderly administration of established laws by the magis- 
trates and dikasts. Though their authority was established 
with the sanction of the victor in the long and desperate 
struggle, its exercise was so utterly at variance with the pre- 
judices and feelings of the people, even of their own partisans, 
that in the following year they were driven out under the 
leadership of the returning exiles, and the democracy was 
restored. While the Peloponnesian war was waged on the 
part of Sparta to destroy the power of a hated rival, it must 
ever stand to the credit of the victor that, instead of the de- 
struction of the city after its surrender, after the destruc- 
tion of its walls, the city was left uninjured, notwithstanding 
the demand of some of the allies that it be destroyed and its 
people scattered. The course of Sparta in this respect was 
in strict accord with the principle of the Delphic Amphicty- 
onic league, which tended to mitigate the horrors of war 
among different Greek cities and prohibited the destruction 
of a conquered city. This league, religious in character, 
seems to have succeeded in promulgating, and enforcing in a 
greajt number of instances, humane principles mitigating the 
horrors of war. It was only in holy wars, waged against 
members of the league charged with some sacrilege, that these 
humane principles were cast aside and barbaric destruction 
inflicted without restraint. 

From the close of the Peloponnesian war to the rise of the 
Macedonian power was a period of frequent wars and varying 
combinations. Thebes, the ancient enemy of Athens and fre- 
quent ally of Sparta, under the lead of Epaminondas finally 
terminated the power of Sparta at the battle of Leuctra. The 
Persian practice of hiring mercenary troops became preval- 
ent with Greek cities, which now relied on money rather than 
on the devotion of their citizens for offensive and defensive 
operations. War, instead of being the exercise of patriotic 



300 EVOLUTION OF GOVERNMENTS AND LAWS 



devotion, became a profession, and mercenary bands, fighting 
for whomever would pay, became numerous. The ancient 
spirit, so much admired in subsequent ages, decayed. Greece 
was still the land of culture, but not of incorruptible heroes. 

In this condition the arts and arms of Philip easily placed 
him at the head of the Hellenic world. Though neither he 
nor his son Alexander claimed despotic powers over the Greek 
cities, both were typical tyrants, recognizing no restraints. 
At the convention of deputies held at Corinth 330 B.C. Alex- 
ander was appointed commander of the Greeks for the purpose 
of prosecuting war against Persia. By the terms of the 
agreement then made the freedom and autonomy of each 
Greek city was recognized, and its existing constitution was 
guaranteed. Violence of one against another was prohibited 
and freedom of commerce guaranteed. Sparta of all the 
leading cities appears to have been the only one which did 
not join. Though this convention effectually bound the cities 
to Alexander, it utterly failed to place effectual restraint on 
him, for it provided for the admission into the cities of Mace- 
donian troops, ostensibly to enforce obedience to the terms 
of the agreement. Protests against his tyrannies were un- 
availing. The revolt of Thebes was followed by its capture 
and the massacre of its people, including women and chil- 
dren, and the destruction of the city. The severity of the 
treatment was in accordance with the wishes of the Greek 
auxiliaries of Alexander's army. With the ascendency of 
Alexander the independence of Greek cities ended, and the 
peculiar political conditions under which the people had pro- 
gressed so rapidly in intellectual development, in literature, 
philosophy, arts and sciences came to an end, but Greek cul- 
ture endured and was diffused over Asia by the armies of 
Alexander and his successors, and over Europe under the sub- 
sequent empire of Rome. 

No equal number of people in an equal period of time have 
left so many evidences of intellectual activity as the Greeks 
from the foundation of Sparta to the time of Alexander. At 
this day the names of illustrious Greeks of this period are 
familiar in greater number to the people of Europe and Amer- 



GREECE 301 

ica than those of any other country at any time, with the ex- 
ception, perhaps, of Rome when at its zenith of power. But 
the intellectual activity of Greece was far more diverse and 
extended over a far wider range than that of Rome. 

The Greeks developed the idea of determining controversies 
by laws declared in advance of the fact and by an impartial 
tribunal acting on evidence adduced at a public trial with the 
right to a full hearing in argument on the facts and the law. 
Individuality and self-reliance were the leading character- 
istics of the people. Religion and government, though not 
wholly disconnected, were not merged or confused. The 
same gods were worshipped by the Greeks of many cities, 
wholly independent of each other, and the bonds of common 
religion were always much wider than those of any govern- 
mental system. Though the religious sentiment was strong, 
it was in the main disconnected from political sentiment, and 
the laws passed were based on views of justice and policy 
rather than on religious sanction. 

Authorities 

Grote : History of Greece. 

Adolph Holm : The History of Greece. 

Thucydides. 

Herodotus. 

Plutarch's Lives. 

Encyclopaedia Britannica. 



CHAPTER XIV 

Rome 

The most ancient people of Italy of whom we have any 
information were in substantially the same stage of develop- 
ment as the earliest Greeks known to us. They tended flocks 
and herds and cultivated the soil. They had implements of 
iron and woven clothing. The relations of the members of 
a family were clearly defined, and the social organization de- 
veloped from the germ of the household. Written history 
does not begin till centuries after the foundation of Rome, 
and what is known of the earliest days of the city comes 
through tradition and the evidence of the works which en- 
dured till letters were introduced. The mythical tale of 
Romulus and Remus no longer finds believers, and the easy 
and definite description of the foundation of the city is now 
impossible. At the time of the first settlements from which 
the city developed, we fail to find evidences of any social 
organization which included large numbers of people or ex- 
tended over a considerable district. Apparently there was no 
government more comprehensive than that of a clan, and the 
authority exercised was paternal in character. Rome grew 
from the clans settled on and about the Palatine hill. The 
city took more distinct form and character when the walls 
were constructed on this hill. A discussion of the combina- 
tion of Latin, Sabine and Etruscan elements to form the city 
would serve no purpose here. We must start with a consider- 
able aggregation of people, including those following urban 
pursuits as well as herdsmen and cultivators of the soil. 

The social organization of the clans did not disappear with 
the growth of the city, but the early structure formed the 
basis in this as in most states of that which followed. Though 
the monogamous family with the rights and duties of each 
member clearly defined is the product of an advanced social 

302 



ROME 303 

stage, it not only existed at Rome in the earliest clays, but 
was the most clearly marked feature of society, and fur- 
nished the basis of the governmental system. The free family 
was the social unit. It consisted of a father, who was his 
own master, a wife whom he had wedded by the priestly cere- 
mony of confarreatio, their sons and sons' sons and their 
lawfully wedded wives and unmarried daughters. It did not 
include the children of a daughter, for if she were married 
they belonged to the family of her husband, and if not they 
had no place in the family. All the property of the family, 
including the slaves, belonged to the man at its head. The 
power of the father in his household was absolute and con- 
tinued till death. He could punish wife and descendants even 
with death. The women of the family were not in fact 
treated as slaves, however, but within the household were 
its mistresses. Sons with families might be allowed to man- 
age a separate property, but in law it belonged to the father. 
A father might even sell his son as a slave to a foreigner. 
As a Roman he could not be a slave in law to a Roman, 
though he might be so in effect. While the father was under 
no legal restraint in dealing with his family, he was subject 
to religious anathema in case of gross abuse of his authority. 
From the family the gens or clan developed, and these were 
distinguished one from the other only by ability to trace defi- 
nitely the relationship. Those whose descent could be definitely 
traced to a common ancestor belonged to the family. Those 
who merely bore the family name but could not give the chain 
of descent belonged to the gens. Attached to the patrician 
houses there was a class of dependents, called clients, who 
sought the protection of the house. The relation of the client 
was intermediate between that of the slave and the free man. 
He was in the power of the patron, who afforded him ground 
to till or other means of livelihood, appeared for him in any 
litigation and obtained redress for wrongs committed against 
him. These client es were regarded as part of the familia and 
were legally subject to the will of the father, who might, if 
he chose, exercise the same absolute power over them and 
their property as over the rest of the family. The father 



304 EVOLUTION OF GOVERNMENTS AND LAWS 

was the religious head of the household and conducted the 
family rites. While the sons in patrician families were in all 
personal affairs subject to the absolute power of the father, 
they were citizens of the state and as such had equal political 
privileges and duties. 

Outside the patrician families were the plebs, who were 
protected by the state but had no share in public affairs. The 
Roman people included three original tribes, the Romnes, 
Tities and Luceres, and these were divided into thirty curiae. 
The curia was the primary association with its common 
sacra, priests, festivals, chapel and hearth. The tribal di- 
vision does not appear of special importance in the constitu- 
tion of the state, but the curiae formed the basis of the system. 
Just when and how they first developed is unknown, but the 
first view discloses them as including not merely persons re- 
lated by blood or marriage, but persons not belonging to the 
gentile families, with membership based largely on occupancy 
of contiguous lands included within the territory of the curiae. 
There was great liberality in the admission of citizens of 
friendly communities, who might be granted the right of citi- 
zenship by the comitia on renouncing membership of their 
native city, otherwise they were regarded rather as guests 
under protection of the community. 

At the head of the earliest Rome was the king, who stood 
as father of the city with powers corresponding to those ex- 
ercised by the father over the gentile family. He was the 
leader in war and in peace, and the religious head of the state. 
His powers, like those of the patrician, were absolute in 
theory, yet restrained by custom and public sentiment. He 
was chosen from among the fathers and held office for life. 
He consulted the gods for the public and named the priests 
and priestesses. He made treaties of peace which bound the 
community. He alone had the right to address the citizens 
in their public assemblies, or to name others to do so. He 
kept the keys to the public treasury, and near his dwelling 
was the blazing hearth of Vesta and the storehouse of the 
community. He was judge of the people in all causes civil 
and criminal and imposed such penalties as he saw fit. From 



ROME 305 

a sentence of death he might allow an appeal to the people 
for pardon, but was not bound to do so. He had the right 
to levy taxes and call out the military force. While he might 
appoint subordinate officers and even a viceroy to rule in his 
absence, all such served subject to his pleasure. He might 
nominate his successor, who was confirmed by the freemen in 
a public assembly convoked for the purpose. In case of the 
death of the king without naming a successor the senators, 
(patres), met and named an interrex from their number, who 
ruled not more than five days. He then named a successor 
according to an order of succession fixed by lot for a like 
term. This second interrex might then name a successor for 
life. The king thus named was then accepted in the public 
assembly by the citizens old enough to bear arms and after- 
ward confirmed by the senate. When the people were as- 
sembled at the summons of the king to decide on any public 
matter, they met in the comitium at the north end of the 
forum and were presided over by the king or interrex who 
put the questions. Each curia voted separately, a majority 
determining its vote, and a majority of the curiae decided the 
question. While they had no power to pass laws or restrain 
the power of the king, the disposition of property by will or 
the renunciation of family or gentile sacra could only take 
place in the public assembly, and adoption into the family 
required their assent as well as presence. The senate was 
made up of fathers of the gentile houses, but did not include 
all of them. The general theory of the organization of the 
state was that each of the tribes was divided into ten curiae, 
that a curia included ten clans or one hundred households, 
and that each household furnished a foot soldier, each clan 
a horseman and a senator. The ten curiae of each tribe fur- 
nished one hundred senators, or three hundred in all. While 
the number of clans and households is thus definitely stated, 
they could not in the nature of things remain constant, and 
the numbers given may not be accurate for any date, but the 
curiae were definite divisions of the state and continued as 
political units. Each curia had its warden (curio), and its 
priest (flamen curialis). Vacancies in the senate were filled 



306 EVOLUTION OF GOVERNMENTS AND LAWS 

by appointment of the king. The powers of the primitive 
senate are not readily comprehended. As the heads of their 
families they were the chief men of the state, each ruling his 
own family, slaves and clients. Collectively their govern- 
mental functions appear very limited, except in the matter of 
providing a king, yet they held a veto on changes in the con- 
stitution of the state proposed to the assembly by the king 
and adopted by it. Though there was no written constitution, 
the senate in a negative manner by its veto might declare what 
the fundamental law was. In theory the king was absolute, 
yet the organization of society was such that despotic powers 
were denied him. The citizens were by no means slaves to the 
king, but rather his equals, from whose number he had been 
chosen. He held his office under no claim of divine right 
but of regular selection. The vigor of the unwritten consti- 
tution was due to the spirit and moral influence of the mono- 
gamous Roman families, and the need of the king for the 
counsel and support of the citizens in the assembly and the 
senators in council. The king had his subordinates to execute 
his commands, but the military power of the state rested in 
the body of citizens, who were soldiers only on emergency, 
and the senate might veto a war of aggression. Though in 
theory the powers of the senate in its earliest days were ex- 
ceedingly limited, the influence of such a body of men must 
always have been great, and subsequent history demonstrates 
how that influence developed into recognized authority. 

In dealing with the earliest constitution of Rome we are 
forced to rely much on inferences deduced from the state of 
society at later periods, when we have a clearer and more 
authentic view of it, and on traditions passed down from 
earlier times. The division of the people into the patrician 
families with their clients and slaves and plebs, who were yet 
not citizens nor slaves, is explained on the theory that the 
patricians were of the stock of the earliest founders of the 
community and that others, brought in from conquered dis- 
tricts or voluntarily settling in the city, were protected by the 
state though given no share in public affairs. The ranks of 
the plebs were also augmented by manumitted slaves and 



ROME 307 

clients and their descendants, who became detached from the 
households of their patrons. As in the earliest times the 
warriors were taken from the citizens only, the numbers of 
the plebs, who were allowed to have families and acquire 
property, increased much more rapidly than those of the 
patrician stock. Though in our day great stress is laid on the 
efficacy of written constitutions and formal legislative enact- 
ments, the early history of Rome exhibits in a striking man- 
ner how accepted principles may govern effectually without 
any written constitution or laws, and how a government may 
be in form and theory despotic, yet effectually curbed in many 
ways. The real living law is that which is generally observed 
and enforced, rather than that which, though promulgated by 
the recognized law-making power, is yet disregarded in actual 
practice. 

The rules which the Romans recognized as authoritative 
were classified under the heads of fas, which was conceived 
to be the laws promulgated by the gods, jus, which signified 
established human customs and regulations, and boni mores, 
which expressed the general public sentiment with reference 
to personal conduct. Fas, which was accepted as the will of 
the gods, regulated religious ceremonials, which constituted 
a most important element in both public and domestic life. 
It went much farther, however, and furnished precepts re- 
garded as binding, not merely on the people of the state in 
their intercourse with each other, but on all mankind. It 
forbade war without the prescribed ceremonial, through which 
the gods were supposed to be consulted. It enjoined faith to 
be kept with enemies, when under sanction of an oath, and 
hospitality to foreigners. It punished murder; the sale of a 
wife by her husband; the resistance by children of the author- 
ity of their parents ; incestuous connections ; false oaths and 
broken vows; and the displacement of boundaries and land- 
marks. All these were regarded as offenses against the sacred 
ordinances of the gods. For minor offences expiation was 
allowed, but for the graver ones the heavy penalty of excom- 
munication was imposed. The outlaw — homo sacer — was an 
outcast with whom it was pollution to associate, who could 



308 EVOLUTION OF GOVERNMENTS AND LAWS 

take no part in public affairs, civil or religious, and whom any 
one might kill with impunity. Jus was based mainly on long 
established customs, recognized as binding, and in the early 
days only to a small extent on rules proposed by the king and 
adopted by the people in the assembly of the curiae. Boni 
mores related to the demeanor and obedience of inferiors to 
superiors, chastity, fidelity to engagements and the like, and 
were enforced by the pater familias, the elders of the gens and 
the king. 

With the early Romans marriage was a solemn religious 
duty. The happiness of the dead in a future state was be- 
lieved to depend on the due observance of funeral obsequies 
and other rites for the good of their souls, which could only 
be performed by descendants of the deceased. The choice of 
the man was limited to a woman with whom he had a right 
of intermarriage. The wife of a patrician must be either the 
daughter of a patrician or a woman of an allied community. 
In taking her as his wife he detached her from her family and 
its household gods, to become a part of his family and under 
the hand of the head of the household. This must be done 
with the approval of the gods, consulted through auspicia. 
The ceremony was a religious one, conducted by the high 
priest in presence of ten witnesses representing the ten curiae 
of the bridegroom's tribe, and was called confarreatio. By 
this ceremony she and all her property passed in manuni, 
under the hand of the head of her husband's home, and thence- 
forth she and all that came with her were his property. The 
religious feelings of the heads of Roman families were such 
that the theory of the despotic rights of the father was pro- 
ductive of little if any evil. The father was dependent on 
the son for those religious offices which were so highly es- 
teemed, and mutual dependence as well as natural affection 
seem to have made the early Roman families high types of 
domestic circles. In case of the unfortunate failure of issue 
or loss of all sons, threatening the extinction of the family, 
the father might provide for its perpetuation by adrogation 
or adoption. By the former the pater familias of another 
household was transferred to become the son of the adrogator 



ROME 309 

and thereby permitted his own family to be nominally ex- 
tinguished. This could only be done with the approval of 
the pontiffs and the sanction of the curiae. The adrogatee 
and all his family and property passed under the power of 
the adrogator. In case of the adoption of the son of another 
pater familias the form was more simple, requiring the con- 
sent of the father of the adopted son. The plebs contracted 
marriages by consent, but were incapable of the religious 
ceremony of confarreatio with its legal consequences, nor 
were they allowed to perpetuate their families by adrogation 
and probably not by adoption. 

In the earliest times there was private tenure of land, but 
there were also public lands belonging to the state. To what 
extent lands were held in common by the clans, if at all, can- 
not be stated. The plebs were allowed to acquire and hold 
land as well as the patricians. The law of inheritance gave 
the property of the deceased to his children and widow 
equally, sons and daughters sharing alike, except that a daugh- 
ter, married and thus a member of her husband's family, had 
no share. This equality was materially modified however by 
the guardianship under which the widow and unmarried 
daughters passed, exercised by their nearest male relation; 
thus the sons became guardians of their mother and sisters. 
In default of widow and children the inheritance went to the 
gens. The succession might be changed by a testament, exe- 
cuted in the assembly of the curiae, or in the presence of 
comrades on the eve of battle. Among the plebs the inheri- 
tance passed to the children, but in the earliest times not to 
collateral relations, and they were without legal capacity to 
make a will. 

In the earliest days money was not in use, and there was 
hardly such a thing as the law of contracts in the modern 
sense. As in most primitive communities, possession and 
ownership were usually concomitant, and for invasion of his 
possession the owner usually asserted his rights in person. 
The dividing line between private wrongs and public offenses 
was not clearly drawn. The tendency was to confuse them 
and treat all matters brought before the judge as of a crimi- 



310 EVOLUTION OF GOVERNMENTS AND LAWS 

nal character. Nor was the punishment of crime exclusively 
the province of the king or judge. In case of murder it was 
the kinsman of the person murdered who avenged his death. 
So too the husband or father might kill wife or daughter and 
her paramour caught in adultery on the spot, but if he de- 
layed till his blood cooled he could then proceed only in his 
domestic tribunal. 

The early procedure was simple : the accused on trial for a 
criminal offence or the parties to a private suit came before 
the king at the judgment platform. He was attended by his 
lictores (messengers). The facts were ascertained by the 
confessions of parties and the testimony of witnesses with- 
out the use of torture, except on slaves. Among capital of- 
fences were treason, violent sedition, parricide, wilful murder, 
sodomy, violation of a maiden, arson, perjury, carrying away 
the harvest by witchcraft and unlawfully cutting the corn in 
the sacred fields by night. The king might hear and pro- 
nounce judgment alone or on consultation with advising sena- 
tors, or might depute the power to others. There were 
trackers of murder, quae stores parricidii, whose duty it was 
to arrest murderers. The isode of inflicting the death sen- 
tence was by throwing down from the capitol hill, hanging, 
burning or drowning. Pardon could only be granted by the 
people on an appeal to them, which the king was at liberty 
to allow or refuse. The culprit's life was spared, if on his 
way to execution he accidentally met one of the vestal virgins. 
For minor offences fines of cattle were imposed or the culprit 
was scourged. For serious injuries the wronged party was 
entitled to retaliation, eye for eye, etc. For thefts and other 
injuries to person or property compensation was usually 
awarded. 

Under Servius Tullius important changes were made in the 
organization of the state. These, though induced mainly by 
military considerations, had a most important influence in 
later years on the civil institutions, and on the relations of 
the plebs and patricians. A census was taken, registering the 
citizens with the numbers in their families, and showing the 
value of their lands and holdings. This census was revised 



ROME 311 

periodically. Transfers of lands to be recognized were re- 
quired to be made publicly under certain forms or by sur- 
render in a court before the supreme magistrate. This form 
of conveyance was called mancipium and continued in use till 
the time of Justinian. All freeholders from seventeen to 
sixty years old, whether patricians or plebs, were equally 
liable to military duty and were divided into centuries, classes 
and tribes without reference to the old divisions. The cen- 
tury of one hundred men became the unit, and the centuries 
were arranged in classes, the front rank including the wealth- 
ier and therefore best armed class, the second and third of the 
grades below and the fourth and fifth made up of the poorer 
citizens, who served as light armed troops. The cavalry was 
similarly dealt with and drawn from the most opulent citi- 
zens. Old men, unmarried women and boys holding land, 
were required to contribute equipments and fodder for cer- 
tain ones. Non-freeholders had to supply workmen and 
musicians for the army, as well as substitutes, who marched 
with the army and took the places made vacant in the ranks 
by illness, death or other cause. For the purpose of making 
the levy the city and its suburbs were divided into four parts, 
superseding the old triple division. Each quarter contributed 
equally one-fourth part of the whole and of each of its mili- 
tary subdivisions, so that each legion and century was made 
up from all four parts. The whole military population was 
divided into a first and second levy, the first or juniors in- 
cluding those from the seventeenth to the forty-sixth year, 
who were usually the active force, while the seniors acted as 
home guards. The military unit was the legion of 3,000 men 
in six ranks, to which were attached 1,200 unarmed velites. 
The normal force consisted of 16,800 men in the infantry and 
1,800 horse. From the time of this reorganization it was the 
centuries whose consent the king asked before waging a war 
of aggression, instead of the assembled patricians, and the 
centuries who authorized the testaments of soldiers before 
going into battle. Political power thus came to be exercised 
by the plebs as a natural sequence of their assuming the bur- 
den of militarv service. At the time of these changes the 



312 EVOLUTION OF GOVERNMENTS AND LAWS 

population and territory of the city had been increased, and 
included probably not less than 100,000 people. From the 
earliest days the leading characteristic of the Roman state 
was its military spirit and superior organization for war. 
Another regulation of Servius, which continued in effect till 
the time of Justinian, was that which prescribed the mode of 
transferring the title to lands, houses, rights of way, aque- 
ducts, slaves and domestic beasts of burden, which were styled 
res mancipi. The transfer was required to be made in pres- 
ence of five citizens as witnesses and a libripens holding a 
pair of scales. The vendee, with one hand on the thing pur- 
chased or a symbol of it, declared it his by purchase with a 
piece of money which he held in the other hand, and with 
which he struck the scales and then handed it to the seller as 
symbolical of the price paid. The actual weighing out of 
the copper before coined money was used, or payment of the 
whole price in later times, does not seem to have required the 
presence of witnesses. This mode of transfer, called manci- 
pation, was primarily established in connection with the 
census, in order that the ownership of property might be defi- 
nitely established and the classification of citizens based on it 
secured against errors. Other forms of property classed as 
res nee mancipi could be sold and title given by delivery, but 
a full title to res mancipi could only be given by this formal 
transfer or surrender in court. A similar formality was soon 
adapted to other forms of contract including emancipation, 
coemption and plebian alienation mortis causa. 

While the date of the foundation of Rome is generally 
fixed about 753 B.C. there seems but little on which to base 
any definite statement about it. The kingly form of govern- 
ment continued till the reign of Tarquin the Proud, who was 
expelled with all his clan by the Roman people because of his 
tyrannies. This occurred about the close of the sixth century 
B.C. The wars waged by hirn to recover the throne ended 
with the battle of Lake Regillus, which is said to have occur- 
red in the year 497 B.C. and to be the first authentic date in 
Roman history. However this may be, the fact of expulsion 
is undoubted, and that the people had become so thoroughly 



ROME 313 

disgusted with kingly rule that they swore that no king should 
ever again rule in Rome. The title of king was retained for 
the high priest, rex sacrorum, who succeeded only to some of 
the religious functions of the former kings. In place of a 
single king two consuls were chosen, to hold office jointly for 
a single year. They were elected by the citizens in the as- 
sembly, comitia, of the centuries from among the patricians, 
formally invested with authority by a vote of the curiae and 
confirmed by the senate. Under the new constitution laws 
were first proposed to the comitia of the centuries, and, if 
adopted, were in like manner approved by the curiae and the 
senate. The consuls succeeded to the temporal power of the 
kings, and each of them possessed these rights in full and 
became a check on the other. While the plebeians thus be- 
came admitted to a share in naming the consuls and making 
the laws, the actual direction of affairs was still in the hands 
of the patricians, who presided in the comitia, and from whose 
ranks the consuls must be taken. The right of appeal from 
capital sentences and sentences to corporal punishment other- 
wise than by martial law was no longer left optional, as under 
the kings, but was made absolute. While the consuls suc- 
ceeded to the judicial powers of the kings, they were subject 
to restrictions. Causes were commenced before the consuls, 
but in civil cases and murders prosecuted by the quaestors the 
consul was required to commit to trial before deputies ap- 
pointed by him. 

The consuls did not succeed to the power of nominating 
the priests, but the college of priests filled vacancies in their 
own ranks and also named the vestals and single priests and 
named a president, the Pontifex maximus. In extraordinary 
emergencies either consul had power to name a dictator, who 
exercised the full power of both consuls, but his powers 
ceased at the end of the consulate and could not continue for 
a period of over six months. In war he commanded the 
infantry and was bound to name a master of the horse, who 
held for a like term. 

The king, holding for life, had been above accountability 
for any of his acts, but the consuls after the expiration of 



3M EVOLUTION OF GOVERNMENTS AND LAWS 

their terms of office were subject to trial for offences com- 
mitted against the law as other citizens. The old privilege of 
the king, to have his fields cultivated by task work of the 
citizens and protected dwellers in the city, ceased on the 
termination of life tenure. With the change in the constitu- 
tion the power of the citizens enrolled for military service was 
further increased, and the assembly of the centuries became 
the most potent political body in the state. A change also 
took place in the curiae, which thereafter included all free- 
men of the city, slaves and citizens of other communities who 
stood in the situation of guest of the city being the only 
classes excluded. 

The senate retained in the main its former powers and 
composition, but was no longer made up exclusively from the 
patrician order. Plebeians were admitted under the name 
conscripii, not however with full rights as senators. The 
consuls while in office had no vote in the senate. They filled 
vacancies whether from among the patres or the pkbeian con- 
scripii, the whole number of both still remaining 300. It 
became the custom to revise the roll on taking the census, 
which occurred every fourth year. The patricians still re- 
tained the exclusive eligibility to the consulate and civil 
magistracies, as well as the priesthood, and the privilege of 
joint use of the public pastures. The practice, commonly fol- 
lowed under the regal constitution, of consulting the senate on 
matters to be proposed in the assembly, became a settled cus- 
tom, and the senate also gained a most important power by 
taking away from the consuls the control of the public treas- 
ury and putting it in charge of two subordinate magistrates 
nominated by the consuls. The expenditure of the public 
moneys could only be made with the consent of the senate. 
On the whole the position of the senate was strengthened at 
the expense of the executive head, but the plebeians also gained 
advantages. The development should not be looked at from 
the narrow standpoint of advantage to one class or the other. 
Rome was a growing power, and the elements of which it 
was composed were asserting their strength, not merely in 
the interests of their respective classes, but for the advance- 



ROME 3i5 

ment of the whole. Among the regulations favorable to the 
poor were reductions of the port dues on grain and interven- 
tion of the state to secure corn and salt for the multitude at 
reasonable prices through state monopoly. A singular regu- 
lation with reference to fines was that which prohibited a 
magistrate from fining the same man on the same day to 
the extent of more than two sheep or thirty oxen without 
granting leave to appeal; thus apparently placing the poor 
shepherd and the rich herdsman somewhat on an equality 
in this particular. 

In the collection and disposition of the public funds the 
system of farming the revenue was adopted, by which a col- 
lector payed a fixed sum to the state and collected in his own 
interest from the people. Public works were also carried on 
through contractors, wjio made large profits on the labor 
employed. The use of the public lands for grazing purposes 
was claimed by the patricians as their right, to a share in 
which however some wealthy plebeians were admitted. This 
had been subject to the payment of a moderate tax, but the col- 
lection of this by the patrician quaestors was gradually omit- 
ted. When new domains were acquired, it had been the cus- 
tom to assign the tillable land to the poorer people, retaining 
the rest for pasture. A system grew up of allowing an oc- 
cupant to take possession for an undefined term, subject to 
the payment of one-tenth the grain and one-fifth the oil and 
wine. This system of occupation was allowed indefinite ex- 
tension, and naturally inured entirely to the benefit of the 
ruling classes, and the collection of the state's share was also 
soon neglected. The wealthy citizens became farmers on a 
large scale. Small land owners, who were heavily burdened 
with taxation, fell in debt and under the power of their credi- 
tors, which was greatly abused. On their return from a suc- 
cessful war under the dictatorship of Marcus Valerius the 
poor landholders, who constituted the strength of the army, 
demanded mitigation of the rigor with which creditors en- 
forced their demands and other reforms in the government, 
and refused to disband until their rights were secured. The 
senate at first refused. The army under leadership pi the 



316 EVOLUTION OF GOVERNMENTS AND LAWS 

military tribunes went into camp between the Tiber and the 
Aino and threatened to establish there a city of their own. 
An agreement was finally made granting temporary relief to 
the debtors and providing for some of the poor farmers in 
colonies that were established, but the most important con- 
cession was that which placed by the side of the two patrician 
consuls two plebeian tribunes, elected by the plebeians assembled 
in curies. The tribunes were given the power to nullify the 
commands of the consuls by a protest properly tendered. The 
tribunes also were given jurisdiction to try and determine 
criminal causes, and in case of an appeal from their decision 
the right to defend it before the people. They also had the 
important power of assembling and addressing the people and 
submitting resolutions for their adoption. The tribunes could 
not prevent the other magistrates from pronouncing sentence, 
the senate from adopting a decree, or the centuries from giv- 
ing their votes, but they could discharge the debtor from ar- 
rest and exempt the citizen from enforced military service. 
That the aid of the tribunes might be always accessible, they 
were prohibited from spending a night out of the city and 
required to leave their doors open day and night. They could 
summon any citizen before them for trial, even a consul in 
office. Their process was served by two aediles appointed to 
attend them, and they were aided by ten men for lawsuits, 
whose precise powers cannot be stated. An appeal from the 
judgment of a tribune went, not to the whole body of citi- 
zens, but to the whole body of plebeians, who met and voted 
by curies. Only against a dictator were the tribunes power- 
less to interpose. As might readily be foreseen this arrange- 
ment invited conflict of authority and tended to violence when 
partisan spirit was high. The tribune Gnaeus Gemicius, who 
had called the two consuls to account, was found murdered 
in his bed on the day fixed for the impeachment. This cir- 
cumstance led to the passage of the Publilian law, which 
provided for a plebeian assembly of tribes and the plebiscitum. 
The plebs had theretofore adopted resolutions by curies, vot- 
ing man by man without distinction of estate, and, as the 
clients of the patricians were entitled to vote in these, the 



ROME 317 

influence of the patrician clans was often controlling. The 
Roman territory was now divided into twenty-one districts 
designated as tribes, but with fixed territorial boundaries. In 
the tribes the voters were the plebeian freeholders only, each 
of whom had one vote, no matter what the extent of his hold- 
ing. Thus the patricians and residents who were not free- 
holders were excluded. The enactments of these meetings, 
when previously approved by the senate, had the force of law 
and were of equal validity with those adopted by the centuries. 
After much contention and many proposals of reform, about 
the year 454 B.C. a Decemvirate was established in place of 
the consuls, to which plebeians as well as patricians were eligi- 
ble, and the tribunate was suspended for the time. An em- 
bassy was sent to Greece to obtain the laws of Solon, and 
after their return the decemvirs were chosen, all of whom 
were patricians. The purpose of the decemvirate was to es- 
tablish a written code of laws for the protection of the people 
against arbitrary and discretionary power. As this code was 
not completed within the term of the first members, a second 
set was chosen, including some plebeians. The product of the 
labors of these officials was the first ten of the famed XII 
tables of the Roman law. Others were chosen the following 
year, who added the other two, all of which were duly ratified 
by the people and engraved on tables of copper and affixed 
in the Forum to the rostra in front of the senate house. This 
famous code is preserved to us only in fragments, gathered 
here and there from the writings of men of later times. A 
summary of them is given in the Appendix. 

How much or how important the omitted parts of this 
famous code may be it is impossible to tell, but enough is 
preserved to show the crude and barbarous customs of the 
time and also the earnest effort for better and more humane 
regulations. For punishments, death, bodily injury and fines, 
for the collection of debts the person of the debtor was seized, 
and he stood on the level of a criminal. Slavery was recog- 
nized, yet at the same time among citizens special privileges 
were prohibited. Publicity and impartiality in all trials were 
enjoined. The truth was to be ascertained from witness 



318 EVOLUTION OF GOVERNMENTS AND LAWS 

and without torture. There is a tinge of superstition here and 
there but little sanction for priestly tyranny. Taken as a 
whole it exhibits the germs of the system of written laws, 
which has since prevailed throughout Europe, commingled 
with the crudities and barbarities of a small warlike commun- 
ity, constantly struggling with its neighbors for existence. 
The decemvirate, having completed its labors in the enactment 
of the code, was not gotten rid of without strife and turmoil. 
Consuls and tribunes were again chosen, and it was decreed 
that thereafter every magistrate, even a dictator, should allow 
an appeal in capital cases. The tribunes were admitted to 
share in the discussions of the senate, and any resolution of 
the senate or assembly might be arrested by them. Soon after 
' 445 B.C. the Canuleian law broke down the strict social di- 
vision, which had been maintained between the orders, and 
declared marriages between patricians and plebeians lawful as 
true Roman marriages and that the children should take the 
rank of the father. It was further provided that in place of 
the consuls six military tribunes should be chosen with the 
powers and for the terms of consuls. As under the military 
system all citizens liable to military service were eligible to 
military commands, this in effect opened the consular office 
to all plebeians liable to service. This was not a permanent 
arrangement, but year by year there was a struggle to de- 
termine whether consuls or tribunes should be chosen, usually 
resulting in favor of the latter. In 435 B.C. the making up 
of the census, which had theretofore been the province of the 
consuls, was entrusted to two censors, nominated from the 
patricians by the centuries for a period of not more than 
eighteen months. To them was confided the power to fill 
vacancies in the senate and even to remove the names of un- 
worthy ones from the lists of senators and eqidtes. There 
were four quaestors in charge of the public money, two for 
the city nominated by the consuls, and two for the army by 
the tribes, but all taken from the patricians. In 421 B.C. the 
nomination of the city quaestors passed to the assembly of 
the tribes, the consul merely superintending the election, and 
plebeians became eligible. Granting eligibility was not equiv- 



ROME 319 

alent to conferring the office, and the patricians still con- 
tinued to fill most of the magistracies. The wealthy plebeians 
struggled to advance their own political privileges quite as 
much as to better the condition of the poor. There were not 
only patricians and plebs, but among the plebs there were 
the freeholders and the proletarii, and beneath all the slaves, 
who were without political rights and for whose welfare as 
a class no party ever labored. During the struggle between 
patricians and plebeians the division was not so much between 
rich and poor or between freeholder and non-freeholder, as 
between patrician privilege on the one hand and plebeian free- 
holders on the other, but the plebeian leaders gave some heed 
to the cries for relief coming from the small farmers and 
laborers. In 378 B.C. the tribunes Gaius Licinius and Lucius 
Sextius submitted a proposal, first to abolish the consular 
tribunate and to thenceforth require that at least one consul 
should be a plebeian ; second to open to the plebeians admission 
to the priestly college of custodians of oracles and to increase 
the membership to ten; third to allow no citizen to maintain 
on the common pasture more than one hundred oxen and five 
hundred sheep, or to hold more than five hundred jugcra 
(about three hundred acres) of the domain lands; fourth to 
oblige landlords to employ in the fields free laborers in pro- 
portion to their slaves ; fifth that debtors should be allowed a 
deduction of the interest which had been paid from the prin- 
cipal of their debts and terms for the payment of the balance. 
After eleven years the senate yielded and these proposals were 
adopted. Following these reforms the judicial power was 
detached from the consuls and vested in a special officer, the 
praetor, and the supervision of the markets, the police duties 
connected therewith and the celebration of the city festival 
were conferred on two newly created aediles, called by way 
of distinction from the plebeian aediles, aediles curules. These 
offices were soon opened to plebs and patricians alternately, 
and within a few years plebs were made eligible to the dicta- 
torship and office of master of the horse and to both censor- 
ships, and the patricians by law excluded from one censor- 
ship. Through these various offices the plebs not only gained 



320 EVOLUTION OF GOVERNMENTS AND LAWS 

admission to the senate, but those who had filled the offices 
of consul, praetor and curule aedile were summoned to give 
their opinions on matters before the senate in the order named, 
whether plebs or patricians, and the other senators merely 
voted on the division. Afterward the priestly colleges of 
pontifices and augurs were opened to the plebs. The senate 
lost its veto power on laws passed by the assembly, and at 
length it was provided that decrees of the plebs should have 
equal force with those of the whole people. This happened 
about 286 B.C. and witnessed the termination of the main 
contention between plebs and patricians. It had previously 
been enacted (339 B.C.) that the senate should give its sanc- 
tion to all laws before submission to the people, which in a 
brief time practically deprived the senate of its veto. 

The Roman government as thus constituted, and as it con- 
tinued without substantial change till the time of the Caesars, 
vested the law-making power in three popular bodies, either 
one of which exercised its powers without action by the other, 
and each of which included in its membership a large propor- 
tion of the members of the other bodies. These were the 
comitia of the centuries which corresponded with the soldiery 
acting in their civil capacity, the concilium plebis, made up of 
the whole body of the plebs, voting by tribes, and the comitia 
tributa of the whole body of the people, also voting by tribes. 
The membership of the comitia of the centuries was based on 
a property qualification, that of the other bodies was not. 
This body at first could be convened and presided over only 
by a consul, but afterward the censors had power to convoke 
it for matters relating to the census and the praetor for state 
trials. The procedure in the passage of a law by the comitia 
of the centuries by which the XII tables were enacted was, 
first publication of the proposed law two weeks before the day 
appointed for the vote, during which time meetings were 
sometimes held for its discussion; second, on the appointed 
day the auspicia were taken by the presiding magistrate, as- 
sisted by an augur which, if favorable, were followed by sum- 
moning the people by blast of the trumpet to attend prayer 
and sacrifice offered by the president, pontiffs and augurs. A 



ROME 321 

final discussion might then follow, at the conclusion of which 
the citizens marched to the Campus Martius where the call 
was read and, if no portent from heaven intervened, the 
question was then put, "Is it your pleasure Quirites to hold 
this as law." The vote was taken by centuries, those of the 
knights and freeholders of full valuation being taken first. 
If these were unanimous the vote went no farther, as they 
constituted a majority. Prior to the Publilian law the con- 
sent of the senate was still necessary, but afterward it was 
not. In the concilium plebis it was not necessary to consult 
the gods by taking the auspicia. It could be convened and 
presided over by a tribune or an acdilc, and its resolutions re- 
quired no confirmation by the senate. 

The comitia tributa was convened by a patrician magistrate, 
and before it could proceed the auspicia had to be taken and its 
enactments required confirmation by the senate. When so 
confirmed they bound the whole people, while those of the 
concilium plebis bound plebs only until after the Hortensian 
law. The struggle of the classes, through which the govern- 
mental system was evolved, was contemporaneous with the 
struggle with external foes through which the number of the 
people, the possessions and power of the state steadily ad- 
vanced. From a kingly government of a small community, 
based on the idea of absolute paternal authority, a populous 
state was formed with the power of making laws definitely 
lodged in the mass of the people; with the idea of written 
law to settle private rights and direct the action of officials 
clearly comprehended and adhered to, and with a distribution 
of powers among executive, administrative and judicial offi- 
cers designed to render one a check on another. Publicity in 
trials and the right of appeal were shields against the arbi- 
trary exercise of power; but more than this the brief terms of 
officers, in whom the powers most subject to abuse were con- 
fided, made systematic tyranny impossible, though it could 
not prevent instances of it. That this security might not be 
impaired by successive elections, it was ordained 342 B.C., 
that the same person should not again administer the office 
until after an interval of ten years. This rule was not rigidly 



322 EVOLUTION OF GOVERNMENTS AND LAWS 

enforced, however, but in extraordinary emergencies was 
disregarded. 

The long struggle between classes resulted in overthrowing 
the exclusive privileges of the patricians and in wresting the 
power to make laws from the representatives of that order, 
but instead of weakening the influence of the senate, it greatly 
strengthened it. A senate made up of the heads of patrician 
houses only would, in a state rapidly increasing in population 
from the elements absorbed by the plebeians, not only have 
become less representative and therefore less influential, but 
would inevitably have lost its vigor by reason of its ex- 
clusiveness. The opening of the senatorial list, not only to 
plebeians who were elected to the principal offices, but also 
to such citizens of distinction as the censors might name, 
made of the senate a body which included the most vigorous 
and influential men to be found in the state. Distinction in 
public service, as well as family and wealth, gave access to 
a seat in it. It was the only select political body in which 
affairs of state were discussed and policies formulated. Sub- 
stantially all important public measures, aside from those 
which were the subject of dispute between patricians and 
plebs, were first aired and formulated in the Senate. It was 
the senate that proposed general policies for the advancement 
of the power of Rome. It supervised the administration of 
affairs at home and in the colonies and subject communities. 
It determined all questions relating to war, peace, alliances, the 
founding of colonies, the allotment of lands, the erection of 
buildings and the system of finance. It issued annually gen- 
eral instructions to the magistrates, fixing the number of 
troops and amount of money at the disposal of each. The 
treasurers could make no payment to a magistrate other than 
a consul except on the order of the senate. Even the power 
of the tribunes was finally turned to strengthen the position 
of the senate, after they were admitted to seats in it and to 
take part in its deliberations. Though the senate was not 
strictly an elective body, and though its members continued 
for life, its ranks were constantly recruited from consuls, 
praetors, aediles and other magistrates, whose merits had 



ROME 323 

been recognized by the people, and who took their seats by 
virtue of that recognition. The senate under the kings was 
an assembly of elders, whom the kings were accustomed to 
consult rather for the inherent value of their counsel than on 
account of any obligation to follow it, and though we no- 
where find any enactment formally conferring powers on the 
senate after the expulsion of the Tarquins, it little by little 
assumed and exercised, as its prerogatives, those powers which 
were not lodged elsewhere. The people were its superiors so 
far as the power to pass laws was concerned, but the field 
actually covered by their enactments was narrow as compared 
with the vast range of subjects of which the senate took cog- 
nizance. Even where a law of the people existed, the senate 
sometimes swept it aside for the time being, if it stood in its 
way. Thus the political head of Rome from the end of the 
monarchy till the establishment of the empire was the senate. 
Under its guidance the leadership of Rome was first extended 
over Latium, then step by step over Italy and afterward over 
all the countries comprising its vast empire. 

The struggles of Rome with the other Latin communities 
began in its infancy, when it was not marked out as first in 
power. In time it conquered Alba, which had theretofore 
been the chief town of the Latins. The earliest union of 
other Latin communities with Rome was not as subjects nor 
as an integral part of a single state, but as allies on something 
like equal terms, and at length with the confederated Latins as 
one party to the compact and Rome as the other. The citi- 
zens of each community were accorded equality of right to 
acquire land and chattels, to trade and marry in any other. 
This relation, formed during the existence of the monarchy, 
continued under the republic. With the growth of Rome the 
relative importance of the smaller communities diminished and 
all leadership centered in Rome, which gathered to itself the 
urban elements, the trades and industries which naturally 
centered in a city. The limits of the city were extended as 
a necessary consequence of its increase in population, and 
the number of tribes increased from four covering the ancient 
wards of the city, to twenty-one spreading over rural districts. 



324 EVOLUTION OF GOVERNMENTS AND LAWS 

By the terms of the compact between the confederacy and 
Rome they shared equally in lands acquired by conquest, and 
thus the boundaries of each were contemporaneously extended, 
but about 384 B.C. the limits of the confederacy, which then 
included thirty voting members, were closed, and a policy, 
thereafter steadily pursued, was inaugurated, by which new 
communities were prohibited from alliance and intercourse 
with each other and bound as closely as possible to Rome. 
Roman citizenship was conferred on those in new settlements 
or acquisitions in preference to the priviliges enjoyed by the 
Latin communities. 

The leadership of Rome, which at first carried with it no 
dominion over the allies, little by little was converted into 
ruler ship, so far as all matters relating to external policy were 
concerned. The creation of new communities allied to the 
Latin confederacy would have stood in the way of the ex- 
tension of the dominion of Rome. From the settlements on 
the Roman hills proceeded other neighboring settlements, to 
whose members the full rights of Roman citizens were ac- 
corded. By treaties or decrees the right of full citizenship 
was conferred on subjugated towns and new settlements more 
distant from the city. Revolts of some Latin towns were 
punished by taking from them their separate organizations and 
incorporating them as integral parts of the Roman state. 
There were other communities on which were conferred Ro- 
man citizenship without the right of suffrage. They were 
entitled to all the legal rights and protection of other citizens, 
and alike subject to military service, but merely could not vote 
or hold office. Other people, attached to Rome as a result 
of war, were granted rights and ruled in such manner as 
might be determined by treaty or by the Romans. There were 
thus, during the extension of the power of Rome over Italy, 
four classes of communities: 1. Roman with full Roman citi- 
zenship; 2. Latins with municipal freedom and governments 
corresponding in form to that of Rome, but in all matters of 
foreign policy, of peace and war, under the guidance of Rome, 
and prohibited from all alliances within or without; 3. com- 
munities whose members were citizens sine suffragio, included 



ROME 325 

in the census, but. neither entitled to vote or hold office; 4. non- 
Latin communities with varying rights depending on treaties 
or Roman decrees. The third of these classes disappeared 
about the time of Hannibal's wars, being either granted full 
citizenship or entirely deprived of it. In after time the Ro- 
man franchise was more and more sparingly conferred. With 
the extension of Roman power throughout Italy there was 
neither direct administration of local affairs by officers ap- 
pointed at Rome, except prefects named by the praetor for 
Roman colonies, nor representation of the different cities and 
states in the central government at Rome. Neither did Rome 
exercise the power of direct taxation in the conquered dis- 
tricts, but the institutions of the various communities were 
moulded into accord with those of Rome, and local govern- 
ment was administered by local authority. Those persons and 
communities enjoying full citizenship might exercise it as 
members of the tribes and centuries at Rome, but not through 
any system of representation. The struggle between the dif- 
ferent orders, through which the plebs gained the power to 
make laws, had no permanent effect tending to improve the 
situation of the poor and middle classes. The differentiation 
of rich from poor went on during the period of Rome's great 
successes with constantly increasing speed. The poison of 
slavery, fostered and perpetuated by successful wars through 
which the slave market was constantly supplied, lay at the 
foundation of the industrial and commercial system. The 
burdens of war fell mainly on the small farmers. The privi- 
leged classes extended their possessions and pastured their 
herds and flocks on the public lands wrested from newly sub- 
jugated people. The earnings of slaves bought more slaves 
for the rich, while competition with slave labor and the ex- 
tortions of usurers, who multiplied with great rapidity, placed 
the small farmer or tradesman between the upper and nether 
millstone. From the multitude of ruined farmers and traders 
and their descendants, recruited by freedmen, there was de- 
veloped that vast mass of poor and dependent citizens, for 
whose benefit the senate deemed it wise to provide cheap bread 
and amusements. The gains of the common people in the 






326 EVOLUTION OF GOVERNMENTS AND LAWS 

system of government were theoretical, while the aristocracy 
seized, exercised and retained an increased measure of power. 
With the extension of the field of operation of the armies 
changes in the military system were inevitable. Whereas, in 
the early days an army was made up of the citizens commanded 
by a consul, going forth to fight some near enemy during a 
brief campaign and then returning to the ordinary peaceful 
avocations, distant campaigns required longer terms of ser- 
vice and rendered it impracticable to recall and disband the 
army within the year of service of the consul. It therefore 
became the practice to extend the command of the consuls 
engaged in distant wars beyond the year, and, in place of a 
citizen soldiery equipped at their individual expense, it be- 
came necessary to have paid legions. With the multiplication 
of distant provinces, requiring the presence of armies to pro- 
tect the frontier and repress insurrections, proconsuls were 
appointed and continued in command for such periods as the 
senate determined. For the administration of the law dis- 
tricts were established, to each of which a prefect was sent, 
who was a judicial officer at the head of the civil adminis- 
tration of the law. Strictly local affairs were everywhere sub- 
ject to municipal authority in the cities and Roman colonies, 
and local customs were not disturbed, except for strong rea- 
sons. Alliances were formed with native rulers, wherever 
the interests of Rome could be advanced thereby, and the set- 
tled foreign policy was expressed by the maxim, "divide and 
rule." To this end republican Rome did not hesitate to ally 
itself with kings and arbitrary rulers, wherever such alliances 
appeared useful in its struggle with an aristocracy like that 
of Carthage. With the extension of Roman power the pos- 
sessions of the patricians and wealthy plebeians were extended, 
and their estates spread, not only over newly acquired dis- 
tricts in Italy, but into distant provinces. The money lenders 
also followed in the wake of the armies, wherever the author- 
ity of praetor and prefect could be depended on to enforce 
the payment of usury. With the administration of govern- 
ment in distant provinces inhabited by alien people, that high 
sense of public duty and strictness of integrity for which the 



ROME 327 

early Romans were distinguished disappeared, and officials 
returned to Rome with vast wealth extorted from them. 
These evils became so great, that in 149 B.C. a special court 
was established for the trial of cases of official extortion in 
the provinces, the jurisdiction of which was subsequently ex- 
tended to cases of treason and bribery. The ancient system 
of serving the state in all public stations without pay, though 
still continued at home, thus had engrafted on it a most cor- 
rupt and corrupting system of public service in the provinces. 

Under the constitution above described, with the theoretical 
power of lawmaking and election of officers in the hands of 
the common people, but the actual direction of affairs in the 
senate, the power of Rome was extended throughout Italy, 
the Punic wars were waged and Carthage destroyed in 146 
B.C. As incident to the struggle with Carthage Sicily and 
Spain were reduced to Roman provinces, and on its final de- 
struction its territory was also ruled directly from Rome. 
Toward the east Rome did not at first seek to establish a 
political dominion, but sought alliances and commercial rela- 
tions. The encouragement given the Carthaginians under 
Hannibal by the king of Macedon led to war, first with Philip 
and afterward with his son Perseus, resulting in his total 
defeat and capture by Aemilius Paulus 168 B.C., but Macedon 
was not reduced to a Roman province till 146 B.C. The first 
appearance of the Romans in Greece was as friends and allies 
against Macedon, and on the first overthrow of the Macedon- 
ian power the Greeks were liberated to their great delight, but 
their internal dissensions soon led to the establishment of the 
usual provincial system. 

With the rapid extension of Roman power on the three 
continents came a correspondingly rapid development of social 
disorders. The Roman republic had been developed as a 
municipal system for the protection and well being of a com- 
paratively small state. Its first extensions of influence were 
over other cities, similarly organized, to which substantial 
equality was accorded ; but with the rapid extension of empire 
Rome as a central power dictated to the known world. It 
was no longer an association of freemen, differing somewhat 



328 EVOLUTION OF GOVERNMENTS AND LAWS 

in rank, but closely allied in interest and sentiment, but a city 
containing a vast mixed population, drawn from many na- 
tions, most of whom were poor, ignorant and brutal, and a 
numerous aristocracy of great wealth, despising all labor 
and laborers. Avarice and greed of power became the rul- 
ing passions of the nobility. The proconsuls and prefects, 
who returned after the exercise of ill-defined and unrestrained 
powers in the provinces, despised the rabble of the city, and 
were impatient of the authority of the senate. Ill-gotten gains 
were lavished, when occasion required, to corrupt the multi- 
tude, and mercenary legions ceased to have the feelings or the 
interests of the ancient citizen soldiery, but followed their 
favorite leaders without regard to law or justice. Moral de- 
basement of Roman society preceded the disorders which re- 
sulted in the overthrow of the republic. The efforts of the 
Gracchi to curb the power of the rich and afford relief to the 
multitude, were not productive of permanent results, and cost 
them their lives. Marius, though one of the common people 
and six times chosen consul by them, was a soldier, and at 
last he swept away the ancient system of organization of the 
legions and substituted voluntary enlistment for compulsory 
levy. The revolt of the Italians resulting in the social war, 
which occurred 90 B.C., was the beginning of those disorders 
which finally resulted in the empire. The legions under Sulla 
and the grant of the Roman franchise to citizens of allied 
communities domiciled in Italy overcame the resistance in the 
provinces, but Sulla returned to Rome at the head of his 
legions, and for the first time in the history of the city public 
measures were dictated and carried by military power. The 
substitution of violence for the ancient peaceful vote evi- 
denced the decay of patriotism, and soon after Sulla's de- 
parture for Asia at the head of his legions the new citizens, 
who sought to exercise the franchises bestowed on them, were 
attacked in the forum by an armed force, acting under orders 
of the consul Octavius, and great numbers of them slain. In 
place of the government of law there had come the sway of 
military power. 

From the ascendency of Sulla to that of Caesar the military 



ROiME 329 

leaders ruled in fact, using constitutional forms only as a 
means of acquiring arbitrary powers. In the early period of 
the development of military rule the leaders sought independ- 
ent commands in the great provinces, by which they became in 
fact dictators over vast territories, supported in the exercise 
of unlimited powers by Roman troops. Having become ac- 
customed to the exercise of unrestrained power abroad, they 
did not brook constitutional restraints at home. Sulla gained 
the command in Asia by the aid at Rome of the legions he 
commanded in the Social war. After his departure Cinna and 
Marius returned with their armed followers to wreak ven- 
geance on their enemies and overawe the senate. Sulla on his 
return from Asia crushed his adversaries and barbarously 
murdered great numbers. The outbreak in 73 B.C. under 
Spartacus and the conspiracy of Catiline were but evidences 
of the decay of constitutional government. The senate, 
though led by so brilliant an orator as Cicero, had lost its 
moral ascendency, and adopted the low expedient of calling 
on one usurper to put down another. Pompey's power and 
ambition developed in the command of Spain, followed by a 
dictatorship over the Mediterranean Sea and its coasts for 
the extirpation of piracy. The alliance of Caesar, Crassus and 
Pompey resulted in the confirmation of Pompey's power in 
Asia and a five years' lease of power to Caesar in Gaul and 
Illyricum. In 55 B.C. Caesar's command was renewed for 
another five years. Pompey received Spain and Africa and 
Crassus, Syria. On his return in 49 and the flight of Pompey 
Caesar assumed the whole power. The government had been 
in a stage of transition for half a century, but it was not of 
the kind that had gone on during the prior history of the 
state. There was comparatively little agitation of theories of 
government, of rights of classes, or of official powers. Mili- 
tary leaders sought great commands, and having gained them 
perpetuated and extended their power by the use of the legions 
under them. It was a mere exercise of usurped authority, 
backed by military force accustomed to obey the leaders' com- 
mands. There was no independent and vigorous force in the 
state, competent to formulate and maintain anything like a 






330 EVOLUTION OF GOVERNMENTS AND LAWS 

just public sentiment of controlling influence. The senate 
divided into factions attached to the contending military lead- 
ers. The great multitude, being without property, were in- 
capable of steady, united effort to accomplish any reform 
beneficial to themselves, and were in fact too brutal and igno- 
rant to appreciate justice or virtue. The one conspicuous and 
appalling fact, which accounts for all the political evils from 
which Rome suffered, was the general and all pervading moral 
debasement of the people. Among the wealthy classes gross 
sensuality was the rule. The marriage bond, which in the 
early days had been regarded as of peculiar sanctity, was 
treated as a mere matter of convenience, and we read of all 
sorts of divorces and exchanges of wives among the patri- 
cians. The strength of the social system of Rome had cent- 
ered around the family lares et penates, and the close tie 
which held husband and wife, parent and child, together. 
Laxity of the bond which holds man and wife together and 
laxity of morals are inseparable. Without purity and in- 
tegrity in the homes there is no basis for virtue in the state. 
Slavery, in itself utterly immoral, is naturally productive of 
allied evils. The great houses of Rome rested on the support 
of slaves. Labor in all its forms was regarded as fit for 
slaves only. To earn money by any useful employment was 
to incur disgrace and social ostracism. In their amusements 
the Romans exhibited in strong light their moral depravity. 
The savage games and gladiatorial contests educated the multi- 
tude to brutality. The great mass of paupers, who yet were 
not slaves, were raised under a system which rendered it not 
only disgraceful to work but of very little profit. To fight in 
the arena" or in the legions offered the best rewards. As it 
had departed step by step from the path of virtue, the republic 
had lost its vitality. Freedom cannot possibly exist without 
justice. In looking for the cause of the overthrow of the 
Roman republic various phases of the situation are given 
special prominence by different ones, but the plain fact is 
apparent, that moral degradation was all sufficient to produce 
every disorder. 

Caesar appears to have been not worse, but rather better. 



ROME 331 

than the average of his contemporaries. After he crossed the 
Rubicon he proceeded to restore order without resorting to the 
butchery of Pompey's followers or confiscation of their prop- 
erty. In this he showed his superiority to Sulla and Marius. 
He did not ostensibly change the constitution, but he in fact 
seized full sway and ruled nominally as a constitutional dic- 
tator, but without limitation of time. The style of perpetual 
dictator implied a suspension of all limitations on his power 
during life. While he sought to restore prosperity and re- 
lieve individual distress by allotments of lands to his old 
soldiers, by the colonization of Carthage and Corinth, by 
stimulating settlements and improvements in the decaying 
towns and on the public lands of Italy, by draining the Fucine 
Lake and the Pomptine Marshes and other like works, he yet 
dissolved the popular political clubs and guilds, curtailed the 
free distribution of corn, and abolished the popular element of 
the judiciary. He assumed the title "imperator" and ruled 
through his "legates" admitting no check or negative of his 
commands by any authority. In form the old system con- 
tinued and officers exercised their functions as of old. The 
senate met, deliberated and resolved, the assembly passed laws 
and elected magistrates. There were consuls, praetors, trib- 
unes, aediles, and quaestors as of yore, but there was one su- 
preme will, to which all opposition must yield, that of Caesar. 
He transformed the senate by raising its numbers to nine 
hundred and including in its list his old soldiers, sons of freed- 
men, and even Gauls. He finally severed all authority over 
the provinces from the Roman comitia and exercised his abso- 
lute power through his appointees. At Rome, as in the prov- 
inces, the officials chosen by the people were limited to the 
exercise of municipal authority. He established in Italy a 
uniform system of municipal government, which his succes- 
sors extended throughout the empire. His brief rule from 
49 to 44 B.C. was long enough to give definite form to the 
changed system of Roman government, and to confer on him 
the title of founder of the empire, although a period of civil 
war and turmoil and the division of the empire among the 
triumvirs intervened before the government became settled 
under Augustus. 



332 EVOLUTION OF GOVERNMENTS AND LAWS 

Octavius after the overthrow of Anthony at Actium pro- 
ceeded to so reconstruct the government as to retain all ulti- 
mate authority in his own hands, while preserving the forms 
of the republic. He did not lay claim to authority derived 
from a source above or outside the people. On the contrary 
he took his extraordinary powers by grant of the people and 
under names and forms familiar to the republic. On the re- 
storation of peace in 28 he resigned the dictatorial powers, 
which he had held through the civil war, and handed over the 
republic to the control of the senate and people. The senate, 
assembly and magistrates resumed their functions. By decree 
of the senate Octavius was granted the proconsulor authority 
over all the provinces in which there was any military force, 
the supreme command of all the land and naval forces of the 
empire, with full power to recruit, pay and dismiss soldiers, 
equip fleets, wage war and make treaties. This authority 
was given at first for ten years. The power did not differ in 
character from that which had long before been habitually 
conferred on proconsuls in limited territories for shorter 
periods. In 23 the governors of all the provinces were subor- 
dinated to him, and he was exempted from the ancient law 
requiring a proconsul to lay down his power on entering Rome, 
and was allowed to bring into the city his prefects and prae- 
torian guards and exercise his proconsular powers from the 
city. This grant of power was formally renewed for subse- 
quent periods of five and ten years. In Rome the proconsuls 
imperium carried preeminence and the right to take his seat 
between the consuls, to be attended by lictors, wear the laurel 
wreath, paludamentum, general's cloak and sword of the 
imperator. The senate conferred on him the title Augustus, 
and he was popularly termed princeps. To complete the 
measure of his power he was also made a tribune of the plebs 
by decree of the senate and vote of the assembly. This gave 
him the right of absolute veto on the acts of every administra- 
tive officer, and to convoke the assembly and senate and pro- 
pose to them new laws. The fundamental change which had 
come over the views of the Roman people with reference to all 
governmental matters was, that in place of looking either to 



ROME 333 

the aristocratic senate or the popular assembly as the source 
of power, all eyes were turned to the proconsul. The senate 
and assembly became mere instruments for the ratification of 
his will. Under Sulla, China, Marius and Caesar it had been 
shown, that whomever the legions obeyed was master also of 
the civil power and could command the votes of the popular 
assembly as well as of the senate. 

Augustus reorganized the army, enlisting soldiers for long 
periods of service, twelve to sixteen years, with regular pay. 
Of these he kept the praetorian guard, his household troops 
and picked veterans, numbering in all 12,000 to 15,000, at 
Rome. The whole army consisted of twenty-five legions, each 
made up of 6,100 foot and 726 horse, recruited both from 
citizens and subjects of the provinces. Aside from these aux- 
iliaries from allied nations and dependencies were employed, 
numbering about as many more. 

Under Augustus the ancient system of municipal govern- 
ment was preserved in form at Rome, but throughout all the 
provinces his absolute imperium was under no check or limi- 
tation. The actual administration of this absolute power was 
carried on in accordance with a regular system, and, theoretic- 
ally at least, justice was administered in accordance with laws. 
The municipal system modelled after that of Rome, had in 
republican times prevailed in all the Roman colonies, and 
under the empire it was extended to the provincial cities gen- 
erally, each city having officers corresponding to the consuls 
and senate, who regulated local affairs and decided small cases. 
Each senate sent two of its members to Rome to represent 
its interests there. 

For the purpose of levying the taxes Augustus caused a 
great map of the empire to be made. The lands were classi- 
fied and rates of taxation fixed according to the quality of the 
soil and nature of the products. From some provinces a 
share of the product was taken in kind, while from others 
payment in money was required. The Romans were skilled in 
the art of levying taxes, and not only land and capitation 
taxes, but various forms of excise taxes and import duties 
were levied, and the products of the mines as well as of the 



334 EVOLUTION OF GOVERNMENTS AND LAWS 

fields were made to swell the revenue. Under Augustus the 
senate was allowed to retain control over the aerarium, or 
treasury of the city, but the emperor's treasury, called the 
fiscus, received the taxes from the provinces and was subject 
to his sole authority. In a short time the aerarium fell under 
the control of the emperors. The army and the treasury up- 
held and perpetuated his power. To rule so many people and 
so vast a territory and make his will effectual, general rules 
of conduct must be announced and enforced through the prae- 
tors and other officers. The vastness of the tyrant's power 
compelled its exercise in accordance with fixed principles 
rather than caprice, and this necessity promoted the develop- 
ment of that great system of settled principles, based on the 
consensus of opinion of successive generations, which fur- 
nishes the foundation of the modern jurisprudence of most 
European and American states. 

During the republic, except when a dictator held absolute 
power in an emergency and for a brief period, the functions 
and powers of all public officials were limited by law, and 
different offices were designed to afford a check on each other. 
The fundamental change effected by the Caesars superimposed 
a military head, who was not accountable to the people or the 
senate. Augustus did not attempt to break up the ancient 
civil system, but rather to reconstruct and strengthen it. In- 
stead of abolishing minor offices he increased the number. 
The senate was allowed to continue to deliberate and exercise 
its former functions in all matters which did not interfere 
with his supremacy or policy. The evils of this system had 
been manifested under the temporary grants of dictatorial 
powers during the civil wars, and became more apparent under 
succeeding rulers. Unrestrained power in the hands of bad 
men is always abused. Not only does the tyrant gratify his 
own personal malice and ruin or destroy his particular ene- 
mies, but those whom he uses as his instruments for such 
purposes are also, as a rule, allowed to treat their enemies in 
a similar manner. By far the greater number of victims 
under the worst of the emperors owed their misfortunes to 
the malice of favorites and subordinates, who used the author- 
ity of the emperor to further individual ends. 



ROME 335 

The idea of government by law was never wholly aban- 
doned under even the worst emperors. While he was subject 
to no supervision or control, he still in theory was subject to 
the laws. This adherence to laws rendered order, tranquillity 
and prosperity possible under the best of the emperors, and 
greatly mitigated the evils under the worst of them. The 
habit of recurrence to a recognized standard of right or of 
conduct tended to steadily diminish the number of personal 
feuds, and to encourage commerce and agriculture. The 
element of arbitrary power was looked upon as a great bless- 
ing when wielded by virtuous rulers, but the poison of the 
system became manifest under every weak or vicious one. 
Against a tyrant there was no protection, and the Roman 
people no longer strove to improve their governmental sys- 
tem, or to study great social questions. 

In the administration of the law the judges were expected 
to decide causes in accordance with settled rules. Wherever 
a legislative enactment covered the case they were of course 
bound by it, but, in the absence of such a positive law, a sys- 
tem of rules was evolved by those who made a special study 
of the law, and who were looked to as authority on doubtful 
points. The judges who actually administered the law were 
not regarded as authoritative expositors of it. In cases of 
doubt they applied to the learned juris consults, licensed by the 
emperor to give written expositions of the law, for an opin- 
ion. This was given in writing and was generally regarded 
as binding, except that where two juris consults gave opposing 
opinions the judge was free to decide according to his own 
views. The emperor exercised judicial functions in cases 
brought before him either originally or by appeal or removal 
from an inferior court. Imperial decrees and rescripts in cases 
decided by him came to have the effect of laws. The emperor 
in theory merely declared the preexisting law, but when the 
question was new the declaration had the effect of the enact- 
ment of a law. These were formulated under the advice and 
with the assistance of the most learned lawyers, who proceeded 
step by step to build up a great system of jurisprudence. 
Though the governmental system became rigid, unprogressive 



336 EVOLUTION OF GOVERNMENTS AND LAWS 

and therefore moribund, with the final establishment of the 
empire the development of the system of laws went on in the 
most rational manner. To the Romans the credit is due of 
systematically developing rules of conduct and governing 
property rights from an intelligent consideration of the needs 
of society. They did not attempt at one stroke to cover the 
whole field by a code of laws which should not admit of 
change or modification, but proceeded to consider the ques- 
tions as they arose from time to time, and formulated their 
principles from what accorded with their conceptions of right. 
Under the republic it had been deemed unjust or impracticable 
to measure the rights of strangers trading with citizens or 
with each other by the Roman jus civile, and so what was 
styled jus gentium or private international law was evolved 
by the praetors. About 242 B.C. a second praetor was ap- 
pointed, called praetor peregrinus, whose principal duty was 
to hear causes to which foreigners were parties, and in the 
exercise of his jurisdiction he applied the jus gentium in those 
cases where Roman civil law was not within the contemplation 
of the parties and its application would be productive of mani- 
fest hardship. The Roman system under the republic ex- 
hibited a marked tendency to adapt itself to the public needs 
and to change with changing conditions, and herein lies the 
secret of its remarkable development. Under the republic 
the praetors were accustomed, on taking office, to publish on 
their albums (white boards in the forum), edicts making 
known the relief they would afford in certain classes of cases. 
These edicts might be continued by the successor or not, but 
many of them were repeatedly proclaimed and came to have 
practically the force of settled law. With the development of 
commerce the customs of merchants, based on the necessities 
of the conditions under which their business was transacted, 
were recognized by the praetors, and these customs in course 
of time ripened into laws. It was this facility for dealing 
with new conditions and adapting means to ends that rendered 
continued Roman supremacy possible. The rulers at Rome 
had to deal with people varying in civilization and culture 
from the rude tribes on all the frontiers of the three continents 



ROME 337 

to the highly polished Greeks. For the first time in the 
world's history there were united under a single authority the 
dwellers in the earliest seats of civilization in Egypt and 
western Asia, the Phoenician colonies of Africa, Sicily and 
Spain, Greece and all the Greek islands and colonies, the rude 
tribes of Spain, Gaul, Germany, Britain and Thrace, as well 
as the varied population of Italy. Rome from its earliest 
conquests had been accustomed to accord local self-govern- 
ment to subjugated communities, and throughout the develop- 
ment of all its vast empire and after the fall of the republic 
it continued to leave the regulation of purely local affairs to 
the people interested, but the central authority had to deal with 
the relations of all these varied peoples with Rome and the 
Romans, and with such other portions of the empire as they 
were permitted to have dealings with. The jus civile was the 
law adapted to the conditions, customs and prejudices of 
Romans, but not to those of strange people. 

In the development of the jus gentium the Romans sought 
rules which could be safely applied under all conditions and 
between all people. It would be inaccurate to say that they 
strove to do ideal justice in each case, or that they searched 
for rules founded solely on moral principles, but a search 
after general rules which can safely be applied under all cir- 
cumstances necessarily leads in the direction of truth, justice 
and morality. The jus gentium of the Roman jurists, though 
developed in a manner somewhat similar to the common law 
of England, differed from it in this, that the jus gentium was 
based on the needs of the newly acquired foreign subjects, 
while the common law is based on domestic customs and 
needs. Both however have for their foundation the presumed 
existence of principles of recognized force, though not pro- 
mulgated by legislative authority. While the intellectual ac- 
tivity of the Greeks exhibited more brilliant results along 
most lines than that of the Romans, in the science of law 
the Romans are clearly entitled to the first rank. While the 
system of government established by Caesar early manifested 
its imperfections and its utter lack of any mainspring urging 
it in the direction of improvement, the juris consults, en- 



338 EVOLUTION OF GOVERNMENTS AND LAWS 

couraged and efficiently backed in their efforts by the best of 
the emperors, by degrees evolved a system of laws commend- 
ing itself to such sense of justice as has generally obtained 
among the great mass of mankind. Roman jurists early 
found that a complex civilization presents complex problems, 
and that the law must deal intelligently with these and with 
all of them, however numerous. They proceeded laboriously 
to formulate rules of general application, by which every con- 
troversy might be determined. In their search after these 
principles they were inevitably led to a consideration of jus 
naturale, which embodied the idea of natural rights existing 
without legislative sanction. Augustus adhered to the an- 
cient system of legislation in the principal reforms he pro- 
posed, and caused his law to be adopted by vote of the comitia 
of the tribes. He made a most commendable, though not 
entirely successful, effort to reform public morals by encour- 
aging marriage and the rearing of children. One of the pro- 
visions of his law excluded unmarried persons within certain 
ages from taking property by will, and limited childless per- 
sons to one-half the amount given. Another class of legis- 
lation, deemed of great importance, regulated the manumission 
of slaves and determined the status of freedmen according to 
circumstances prescribed in the law, as citizens, as capable of 
becoming such or, owing to bad character, forbidden to reside 
within one hundred miles of Rome or ever to become a 
citizen. A third class of enactments regulated procedure in 
private causes. 

From the time of Tiberius the comitia was no longer con- 
sulted, and under succeeding emperors imperial rescripts and 
decrees gradually superseded legislation by assembly and sen- 
ate. Rome witnessed the growth of the law of contracts from 
primitive conditions in the early days of barter of chattels 
and tribal and patriarchal tenure of lands through successive 
stages to that freedom of contract so essential to commercial 
activity. In the early stages the formalities required in the 
transfer of property in order to furnish a basis for the action 
of the courts were incompatible with anything like commercial 
activity, but step by step the law of contracts developed, till 



ROME 339 

the intent of the parties was given effect by the courts with 
little needless formality. The law of inheritance was through 
all ages a leading subject of jurisprudence, and here, as in 
the law of contracts, there was a steady tendency to greater 
freedom in the disposition of property according to the will 
of the owner. Contemporaneous with the vast increase of 
the army new rights were accorded to soldiers in the dispo- 
sition of their estates by testament. As to property acquired 
by military services the soldier son was allowed full power of 
testamentary disposition, freed from the patria pot est as of the 
head of the family. With this change came also a recognition 
of the right of owners generally to dispose of property by 
will and the growth of trusts created by will. The great heads 
of legislation and judicial cognizance were domestic relations 
i.e., family and slaves, inheritances, contracts, land tenure. 

For the protection of invaded rights there was an effort 
under the empire to improve remedies and adapt means to 
ends without any radical change of the system. The ordinary 
suit was instituted by application to the praetor. Under the 
old system the parties themselves formulated the issues to be 
tried in accordance with statutory or traditional forms, and 
the issue so made was sent to the judex for trial. This was 
changed so that the issue was framed by the praetor. The 
plaintiff usually stated the case and indicated on the albuiif 
the remedy he thought suitable, and the defendant entered 
his plea indicating matter of defense in law, and reserving his 
right to traverse the facts. Thereupon the praetor considered 
the legal exceptions to the case stated by the plaintiff, and 
made up a written and signed appointment to a judge, in- 
structing him what to try and authorizing him to condemn or 
acquit the defendant. The form in which the issues were 
framed in an ordinary action to recover a debt was exceed- 
ingly simple like this "Caius be judge. Should it appear that 
M. A. ought to pay ten thousand sesterces to J. C. in that 
sum condemn M. A. to J. C. ; should it not so appear acquit 
him"! Modifications of this form allowed the recovery of 
the value of chattels or an equitable accounting of profits or 
the like. 



340 EVOLUTION OF GOVERNMENTS AND LAWS 

One form for the trial of a suit for land was, that the 
plaintiff required the defendant to give him a stipulation to 
pay a nominal sum in case the land should be found to belong 
to the plaintiff and to give surety for its transfer in that event. 
The question sent to the judge to be tried was whether the 
sum should be paid. If the plaintiff recovered and the de- 
fendant did not deliver the property, recourse was had on the 
sureties. Besides the set forms adapted to certain classes of 
actions the praetors formulated a great number, suited to 
special cases, generally styled actiones in factum. They also 
by interdict gave relief similar to that granted by injunction 
under our practice. The development of remedies was very 
similar to that in England. In the early times a few set 
forms of action afforded all the relief allowed; later these by 
fiction were allowed to cover cases not within the letter, and 
then new forms of procedure were devised to meet new con- 
ditions. Causes presenting novel questions and of especial 
difficulty were retained for trial and disposition by the praetor 
or taken cognizance of by a consul. The judices to whom the 
praetors referred causes were not officials, but citizens se- 
lected to hear and determine the particular cases. In the time 
of Diocletian the system of referring causes to judices fell 
into disfavor and was soon discontinued altogether; gover- 
nors, prefects and praeters being required to hear the cause 
to the end, and the old procedure by which the plaintiff him- 
self brought the defendant into court was abandoned. 

The government of Rome, though in its essence a despot- 
ism, did not discard all the forms of a republic till the time of 
Diocletian. Though for centuries the obsequious senate had 
ratified the edicts of the emperors and given a formal sanc- 
tion to his will, Diocletion ignored it altogether. He associ- 
ated with himself the harsh and vigorous soldier Maximian, 
as joint ruler with the style Augustus, and later two other 
associates, as inferiors under the style Caesares; all subor- 
dinate to Diocletian as senior Augustus. He threw off all 
pretense of constitutional government and openly assumed 
autocratic powers, and to the title "imperator" added that of 
"dbvninus" and required those approaching him to make those 



ROME 341 

servile prostrations which were customary in the courts of the 
east. He infused vigor into the administration of the local 
government, but it was everywhere despotic vigor, emanating 
from the central authority. The government ceased to be ad- 
ministered from Rome as the seat of power; Nicomedia in the 
east and Milan in the west became the favorite residences 
respectively of Diocletian and Maximian. In his reign the 
government reached its climax of absolute power and rigidity, 
though the scheme of a quadruple division of power did not 
endure. While administrative changes occurred from time 
to time thereafter, the government remained despotic, unpro- 
gressive and moribund. The Roman republic was dead. The 
Roman empire ceased to be ruled either from Rome as a capi- 
tal or by Romans, for Diocletian was the son of slave par- 
ents, and his mother was a Dalmatian. At the head of the 
civil administration were four prefects, under whom were the 
vicarii over the twelve dioceses, and governors of the 116 
provinces with their hosts of minor officials, all under strict 
subordination and accountability to the central authority. 

The reign of Constantine, beginning in 323, witnessed the 
establishment of the capitol of the eastern empire at Constan- 
tinople and the adoption of the Christian religion as the re- 
ligion of the empire, but the theory of government remained 
unchanged. For the beneficial effects of Christianity we have 
to look elsewhere than to the governmental machinery. 
Though writings embodying the principles of the law multi- 
plied, not only in the form of enactments by the comitia and 
senate and later in rescripts and edicts of the praetors and 
emperors, but also in extended commentaries by juris con- 
sults, it was not till the reign of Diocletian that the first 
efforts at codification were made. The Gregorian Code was 
a collection of imperial rescripts made near the end of the 
third century, to which Hermogenianus added a supplement 
about 365. These codes received the sanction of Theodosius 
and Valentinian. Under Theodosius a compilation was made 
and published A.D. 438 in sixteen books, covering the whole 
field of the law. Other less noted compilations among which 
may be mentioned one by order of Theodoric king of the 



342 EVOLUTION OF GOVERNMENTS AND LAWS 

Ostrogoths, called the Edictitm Theodoric, and another by 
order of Alaric II king of the Visigoths, styled Lex Romana 
Visigothorum. 

The work however which stands as the product of all legal 
development under the empire is that accomplished by Tribon- 
ian and his associates. As we have seen, during the years of 
development the law gained written expression from time to 
time in edicts, rescripts and opinions of the juris consults. 
These in the time of Justinian had become so numerous as 
to fill nearly two thousand volumes. Justinian was not merely 
a compiler, but himself made various reforms in the body of 
the law. The first compilation made under his order was 
called the code, including the statute law and rescripts of the 
Gregorian and Hermogenian codes. This was followed by 
his fifty decisions, the Institutes, the Digest of writings of the 
jurists, a revised code and a series of Novels. Taken together 
they purport to cover the whole field of the law, civil, criminal, 
public, private, secular and ecclesiastical. The most that can 
be attempted here in reviewing this great work is a very gen- 
eral outline of its scope and leading provisions. This is ren- 
dered most difficult by the want of systematic and orderly 
arrangement, which alone saves modern publications from 
chaotic worthlessness. 

Of the compilations of Justinian the Institutes were de- 
signed as a textbook for the schools, but the Digest and 
second or revised code were declared of equal authority. A 
condensed summary of the Institutes will be found in the Ap- 
pendix. It is noticeable that the compiler and final authorita- 
tive promulgator of this vast product of Roman jurists, should 
have been a barbarian, born in Illyricum, ruling in Constanti- 
nople after the final extinction of the western empire and the 
overthrow of Rome as a center of political power. The vast 
accumulation of legal lore filling so many volumes was re- 
duced to reasonable limits, freed from many uncertainties, 
improved in many particulars and promulgated as of con- 
trolling authority in all courts, in the empire. It is even more 
remarkable that the perfection of this great body of law should 
have been effected after the disintegration of the empire was 



ROiME 343 

well advanced, and at a time when letters were neglected and 
the authority of courts was being broken by the inroads of 
the barbarians and the disruption of the Roman system 
throughout the empire. Having reached its culmination the 
Roman law ceased to develop or have uniform operation, but 
gave way to the customs and laws of the barbarians wherever 
they supplanted Roman civilization. It was still resorted to 
in those parts of the empire which escaped the inroads of the 
barbarians, and as learning revived regained its force with 
modifications resulting from changed customs and conditions. 
Justinian, like many another lawgiver, aimed at completeness 
and finality in his work, and forbade the use of any other 
books or authorities, or any comments or interpretations of 
his works. He like others was oblivious to the truth that an 
absolutely fixed and rigid system of government or of laws is 
impossible. Anything like a clear comprehension of a system 
of laws necessitates an understanding of the material and 
social conditions to which it is applied. If we had no extrin- 
sic evidence, the laws themselves exhibit the importance of the 
Roman theory of the family and of the institution of slavery. 
From the earliest days of Rome slavery had been a recognized 
institution, and it held its place until the empire broke into 
fragments. In the early days the number of slaves was rela- 
tively inconsiderable, but as new territories were added and 
the rich citizens enlarged their estates, they increased the 
numbers of their slaves, till in the time of the Caesars the 
nobles owned them by hundreds and even by thousands. With 
this great increase in slave holding came a corresponding de- 
crease of the prosperity of the poorer class of citizens, who 
throughout the agricultural districts gradually ceased to be 
independent landowners and became tenants of the wealthy 
proprietors. In course of time this tenancy became on harder 
and harder terms, till the coloni, as they were termed, became 
virtually serfs attached to the soil, bound to cultivate the 
land on terms affording but a bare subsistence. Agricultural 
slaves were to a great extent assigned to the cultivation of 
particular tracts of land, which they were permitted to occupy 
with their families, and thus the actual conditions under which 



344 EVOLUTION OF GOVERNMENTS AND LAWS 

the coloni and the slaves lived were often very similar. In 
the days of greater activity slaves were employed by their 
masters, not only on all kinds of works, but in all trades and 
callings, and opportunities for the acquisition of property and 
of freedom were afforded to some. The proud Roman patri- 
cian despised all useful labor and entrusted every employment 
to his slaves. Under the republic their numbers were sufficient 
to make servile revolts serious, and the insurrection under the 
leadership of Spartacus was only subdued after a desperate 
and bloody war. The emperors aimed at the establishment 
of social order and the protection of property rights. The 
moral claims of the slave to liberty and the pursuit of happi- 
ness were wholly obscured by the master's right to property. 
The great province of law and government was first to firmly 
establish the power of the emperor and those acting under 
him, and next to maintain the rights of property, that is the 
dominion of the master over his slaves and his lands. The 
ancient Roman idea of a single head of the family with full 
sway over all his children under the power and their families, 
accorded well with the spirit of a slave holding community. 
We have seen how largely slavery entered into the legal sys- 
tem of Justinian, and how fully it was recognized, though de- 
clared to be contrary to natural justice. With the reign of 
Justinian the empire in the west witnessed its last vigorous 
assertion of supremacy in Italy, though it nominally main- 
tained a semblance of authority in central Italy till 755. The 
perfected despotism had become crystalized under Diocle- 
tian, leaving no chance for development or betterment from 
the wisdom of the multitude. The lawyers and lawmakers 
continued to change, amend and improve the laws till the time 
of Justinian, when they were compiled by his direction, and 
though greatly improved and rendered far easier of access 
than when scattered through so many volumes, they rapidly 
passed out of view and became unsuited to the changed con- 
ditions. The social decay resulting from an organization of 
society under which the great multitude were slaves, without 
education, opportunity for observation except of their im- 
mediate surroundings, or hope of better conditions, with an 



ROME 345 

indolent debauched nobility supported as drones, invited the 
frequent inroads of the more free and vigorous races of the 
north. The various Germanic tribes, the Goths, Vandals, 
Lombards, Huns and Franks in wave after wave swept down 
on Gaul, Spain, Africa and Italy, until the Roman system 
gave way, and a new composite of northern manners and Ro- 
man customs ushered in the so-called dark ages, when learn- 
ing was for the priest alone, and war was the business of 
every freeman. With the growth of the feudal system, with 
its lord paramount at the top and its serf bound to the soil 
at the bottom, the slavery of the Romans disappeared. It 
may be interesting for scholars to trace the stages by which 
the slaves and coloni of the Romans and the humbler follow- 
ers of the Frankish leaders were transformed into the lowest 
round of the feudal ladder, but the transformation was not 
the result of conscious law-making. The decay always in- 
cident to despotism, idleness and corruption in the palace, a 
multitude of officials, ever bent on extorting more and more 
from every producer of wealth, weakness and inefficiency in 
those who lived in idleness on the fruits of the labors of oth- 
ers, at last culminated in conditions but little removed from 
anarchy. The various leaders attracted followers according 
to their abilities, to whom they parcelled out the lands on a 
strictly military tenure, the lord pledged to protect the vassal 
in his possession and the vassal bound to fight in all the lord's 
wars. The slave, the colonus and the indigent became the 
serf, ceorl and villein of the feudal chief. The eastern em- 
pire lingered on as an uninteresting despotism till the fall of 
Constantinople in 1453. At Rome the spiritual power of the 
popes gained an ascendency over Europe, which made the 
eternal city once more the seat of power. 

From the fragments of the western empire, through num- 
berless vicissitudes have developed the modern European 
states. Until within modern times these, with exceptions 
hereafter noticed, were mostly governed by rulers claiming 
power as absolute as that exercised by the later Roman em- 
perors. The rules of feudal tenure took the place of the land 
laws of the Romans and gave to title to lands a prominence in 



346 EVOLUTION OF GOVERNMENTS AND LAWS 

the system of laws which it never had under the Romans. 
With the latter the slave was a more prominent object than 
the land he tilled. Under the feudal system land tenure was 
the basis of the relations of all orders of society, and the land 
and its produce, after the decay of the industrial arts, became 
almost the sole wealth of the people. The rank of the lord 
paramount depended on the extent of his holdings and the 
number of retainers who did him homage. 

Though so large a part of the Roman law became obsolete 
by this change, it still contained the only compilation of rules 
for the determination of questions arising from the multi- 
farious dealings of men, from their contracts, their acts and 
neglects, and with the revival of learning and of commerce, 
the great work of Justinian, having slept for hundreds of 
years, became the fountain of legal lore to which the students 
of the law throughout all Europe turned for light and author- 
ity on doubtful points. The reasoning of the ancient writers, 
preserved in the Digest, still throws as clear light on many 
questions as can be found anywhere, and carries with it the 
authority of jus naturale. 

Five centuries of struggle between classes for ascendency, 
and of a public sentiment that demanded from the citizen a 
sacrifice of private interest and of life when needed for the 
republic, witnessed the rise of the Roman state, the extension 
of a system of self-government and of laws over western 
Europe and all the countries bordering on the Mediterranean 
Sea. It witnessed a high development of agriculture, the 
growth of manufacturing, mining, arts and commerce, where- 
cver Rome's power was recognized, and marked advancement 
in learning. Though Rome waged almost incessant war in 
some quarters, the area of peace extended with her conquests, 
and an ever increasing proportion of the people were enabled 
to pursue peaceful avocations in security. Under these condi- 
tions population multiplied and wealth and- comfort, though 
most unequally distributed, were general throughout the state. 
During these five centuries public office was sought and public 
duties were performed for honor, not for profit. The rank 
and distinction resulting from high offices of state were 



ROME 347 

deemed so great a reward that the brief terms of yearly 
power were eagerly sought by the most capable citizens. 

The vast military organization and the struggle for its 
leadership developed the empire. Five centuries of rulership 
from a single head through an ever increasing multitude of 
highly paid officials, of gradual elimination of all self-govern- 
ment and of substitution therefor of rigid laws, enforced 
often with extreme severity and cruelty, witnessed the decay 
of public virtue, the decline of population, wealth, learning 
and all those conditions which tend to make life enjoyable. 
Owners of vast estates with their multitudes of slaves af- 
forded no material from which to build an efficient, spirited 
army. The free and vigorous Germanic tribes swept over 
Gaul, Spain, Africa and finally Italy and Rome itself. The 
magnificent structure of a firm and settled government with 
its code of well developed laws governing so vast a territory 
and such a multitude of people, capable as one might think 
of conferring immeasurable good on innumerable people, in 
fact resulted in desolation and anarchy. Why? Because it 
was immoral and unprogressive. It bred vice and cruelty in 
the palace and all who held authority under it, and stifled the 
political virtues of the multitude. It divided the people into 
masters and slaves. Though the eastern empire lingered on 
till Mahomet II took Constantinople, and killed the last of 
his line, the emperor Constantine Poleologus, it presents no 
other features of government or laws worthy of especial study. 
It was but another oriental despotism, with its record of ever 
recurring cruelty, treachery, wars, murders, and occasional 
exhibitions of virtue in the palace, soon followed by the same 
old story of debauchery, vice and imbecility; overthrown at 
last by a new dynasty to again follow the same dreary round. 

Though the Western Empire passed away long before the 
Eastern, the influence of Rome as a law-making and law-en- 
forcing power was perpetuated through the Church, and still 
continues. The Canon law was more than a collection of 
moral precepts advanced as binding on the conscience. It 
covered a field claimed by the Church as under its government, 
and came to be accepted in more or less of its rules by the 



348 EVOLUTION OF GOVERNMENTS AND LAWS 

secular power of all the nations professing the Christian re- 
ligion. It was given form by synods and councils of the clergy 
and the decretals of the Pope. These were put forward as 
carrying a religious sanction, binding on all mankind, and 
were enforced by the tribunals of the church in accordance 
with its practice. From the Canon law are taken many of the 
rules now observed not only on the continent of Europe, but 
in Great Britain, its colonies and the United States, in mat- 
ters relating to the domestic relations. The Church took 
charge of the baptism of infants, the marriage of adults and 
the burial of the dead. In the performance of these rites 
there was no distinction of rank. Prince and pauper alike 
were children of the Church. With the acceptance of the 
Christian religion the heathen prince bowed to the spiritual 
power of the Pope, and received baptism at the hands of a 
priest. It was impossible to be a Catholic without acknowl- 
edging some part of the Canon Law, and thus the most power- 
ful monarchs found it impossible to wholly ignore the 
temporal sway of the Pope within their dominions. The 
principal heads of the jurisdiction of the ecclesiastical courts 
were : 

1. Marriage and divorce. 

2. Legitimacy of children. 

3. Wills and the administration of estates of deceased 
persons. 

4. Causes relating to church property and revenues. 

5. Those affecting the persons of the clergy. 

The first two were earliest asserted, most generally admit- 
ted and continued to be longest exercised. The fourth and 
fifth were most difficult to establish and maintain. Many of 
the principles followed by the ecclesiastical tribunals as sub- 
stantive law are still retained in countries where the jurisdic- 
tion of church tribunals is confined to the discipline of its 
members in purely religious matters. 



ROME 349 

Authorities 

Momsen : History of Rome. 

Gibbon : Decline and Fall of the Roman Empire. 

Merivale : Romans under the Empire. 

Livy. 

Tacitus. 

Caesar. 

Sallust. 

Plutarch's Lives. 

Encylcopaedia Britannica. 



CHAPTER XV 



Mediaeval Europe 



The empire of the Romans in Europe was limited oil the 
north and east by the Danube and the Rhine after the aban- 
donment of Dacia in 256, and included Britain and the low- 
lands of Scotland in the north and the Chersonese on the 
Black Sea. Without these boundaries lay the vast terra in- 
cognita of Germany, Sarmatia and the northern peninsula. 
Of the early history of this unknown country we know only 
what is told by Greek and Roman historians in connection 
with wars and movements of people, where Greeks and Ro- 
mans came in contact with Germans, Getae, Scyths and other 
people of the north and east. 

After their conquest Spain and Gaul became thoroughly 
Romanized, and the country south of the Danube with its 
predominant Greek elements submitted to Roman rulership 
and laws. Though the empire was many times shaken by 
wars over the succession to the imperial throne, and though 
in the east Persia offered battle from time to time, the period 
from the reign of Augustus to the overthrow of the western 
empire in the fifth century was one of comparative peace and 
security, yet not of progress. Agriculture and the useful arts, 
instead of advancing, fell into decay. Learning waned and 
the ability to read and write, which under the republic had 
become common, was rare. The great works of Justinian 
in the next century, reducing the laws to form and system, 
never became generally known to the people of his exhausted 
and crumbling empire. 

Imperial rule produced neither moral nor material develop- 
ment. Roman sentiment never condemned, but rather de- 
lighted in bloody spectacles and exhibitions of cruelty and 
barbarity. Slavery lay at the foundation of property rights. 
The ignorant multitude applauded the lavish expenditures and 

350 






MEDIAEVAL EUROPE 35i 

barbaric display of the rich. Neither the government nor the 
property system rested on any moral basis. With the destruc- 
tion of the middle order the integrity of the domestic system 
was broken, and that only sure repository of virtue and purity, 
the family, was subjected to the debasing influence of frequent 
divorces and remarriages at the dictation of interest or 
caprice. 

With the republic also passed away that devotion to the 
public welfare, which had been the conspicuous virtue of 
Romans throughout the long and desperate struggles that 
gave Rome mastery of the known world. This was the Ro- 
man approximation to a conception of the universal moral 
principle of mutual help. In its place came oriental sordid- 
ness. Deprived of all participation in affairs of state, unless 
as the mere instruments of the imperial will, the ambition of 
the citizen was to gain wealth and through wealth enjoyment. 
The sure fruits of successful effort in this direction are 
cruelty and sensuality, which in turn bring disease and destruc- 
tion. Out of the darkness came the Germanic tribes, whose 
history no records preserve. With manners and customs 
bearing more resemblance to those of the Romans of the 
early days than prevailed in the empire, they attacked the 
enervated Romans. In the early years of imperial rule the 
vast resources of the empire were such as to render victory 
over the comparatively insignificant tribes sure, if not easy. 
In the reign of Marcus Aurelius an irruption of the Marco- 
manni and allied tribes swept across the upper Danube over 
Pannonia, Noricum and Rhaetia to the Alps. They were 
driven back after fourteen years of war. In 236 the thereto- 
fore unknown tribes of the Alemanni crossed the Rhine, and 
the Goths appeared on the Danube. During the civil wars 
from the reign of Philip to Claudius, 244 to 249, the bar- 
barians improved their opportunities, and the Alemanni and 
Franks poured into Gaul and Spain and even Africa. In 
247 the Goths crossed the Danube and overran Moesia, Thrace 
and Macedonia and in 251 defeated and killed the emperor 
Decius. In the reign of Valerian 253-260 their fleets ap- 
peared on the Black Sea and ravaged the maritime towns of 



352 EVOLUTION OF GOVERNMENTS AND LAWS 

Asia Minor. In the reign of Gallienus, 260 to 268, a fleet of 
five hundred sails appeared on the coast of Greece and sacked 
Athens, Corinth, Argos and Sparta. In 269 under the emp- 
eror Claudius the Romans defeated and drove them back 
across the Danube. Five years later a raid of Franks and 
Alemanni was repulsed on the Rhine. As a result of these 
conflicts the Romans were forced to recede and abandon Dacia 
and all possessions beyond the Rhine and Danube to the ad- 
vancing barbarians. Under the vigorous and despotic reign 
of Diocletian the integrity of the empire was preserved and 
the authority of the government vigorously maintained, but 
there was no improvement in the moral tone of either people 
or government. Selfishness and want of social virtue called 
for a better corrective than a more vigorous assertion of au- 
thority and an increased burden of taxation. The removal of 
the capital to the Bosphorus was soon followed by the division 
into the eastern and western empires, and by the decay of im- 
perial authority throughout the west. 

In 376 the Huns emerged from the unknown hives of Asia 
and pressed against the Goths, who sought the protection of 
the emperor. They were allowed to cross the Danube and 
settle in Moesia, but soon rose in arms against their protectors 
and in 378 defeated and killed Valens, overran Illyricum, and 
advanced to the gates of Constantinople. Theodosius made 
peace with them and took many into the army. While the 
boundaries of the empire were nominally maintained through- 
out the fourth century, there was a growing pressure from 
the northern tribes. As a result of their contact with the 
Romans, Goths, Franks and other nations acquired some 
knowledge of military science, and learned to supplement the 
hardy valor of their warriors with some measure of discipline 
and mutual support. On the other hand, civil wars, the de- 
pendence on mercenary troops, the utter disappearance of 
everything like unselfish devotion to the public welfare, the 
grinding burden of taxation levied to pay mercenaries, many 
of whom were barbarians, and to support the vile profligacy 
of the palace and the ever growing multitude of officeholders, 
the slavery or extreme poverty of all who labored, and the 



MEDIAEVAL EUROPE 353 

want of courage and manhood in the favored few, who dissi- 
pated in wasteful luxury the best of all the toilers produced, 
left the empire enervated and spiritless. Barbarians who had 
fought in the armies of the emperors became qualified to 
lead armies, and Alaric, who had been favored by Theodosius, 
led the Goths from their settlements south of the Danube, 
where many of them had embraced the Christian religion, into 
Illyricum and Greece and thence into Italy, closing his tri- 
umphant career with the sacking of Rome in 410. 

Contemporaneous with this movement of the Goths there 
was an irruption of the Vandals, Suevi and Alani into Gaul 
and thence into Spain, where the^ established permanent set- 
tlements and partitioned the country among the tribes. In 
419 Ataulf as king of the Visigoths founded a monarchy in 
southwestern Gaul. In 429 the Vandal king, Genseric, crossed 
into Africa with his army and their families and established 
his authority there. He was recognized by the Emperor soon 
after and took Carthage in 439. The movements of these 
Germanic tribes were not solely in the form of attacks, start- 
ing from their homes beyond the great rivers, but were in 
part migrations into new homes assigned them by the em- 
perors. Goths, Vandals and Franks learned Roman methods 
before achieving great victories. In 451 the Huns under 
Attila attacked the empire and invaded Gaul. Attila came as 
the ruler of a great dominion, including not only Huns but 
many German tribes. He drove the Goths before him, who 
in turn united with the Romans and aided in his defeat. In 
455 the Vandals under Genseric invaded Italy from the south 
and sacked Rome. In 476 Odoacer, the Goth, was proclaimed 
king by the barbarian mercenaries in Italy, and although he 
nominally recognized the authority of the emperor of the 
east and received the style patrician, all real power was in his 
hands. Though a Goth, he recognized the Roman laws, and 
used the Roman system of administering them. He took one- 
third of the lands of the great proprietors and distributed 
them among his followers. Odoacer was overthrown, not by 
Romans, but by the Ostrogoths, who under Theodoric in- 
vaded Italy with their wives, children and chattels from the 



354 EVOLUTION OF GOVERNMENTS AND LAWS 

Balkans, where they had tarried when their brethren the 
Visigoths moved westward. 

Theodoric ruled Romans by Roman law and Goths in ac- 
cordance with their own customs. He provided for his people 
from the lands confiscated by Odoacer, a great part of the 
holders of which had been killed in battle. The Goths were 
judged by their counts, and where a controvery arose between 
Goth and Roman, the case was heard by a mixed court. He 
had his body guard and its chief officers of Goths and also 
a full establishment of Roman officials. Theodoric extended 
his rule, not only over Italy, but also over the Germanic peo- 
ple in Rhaetia and Noricum, and over southern Gaul and 
Spain. The traditions of the Lombards related that they had 
dwelt on the Scandinavian peninsula, whence they had crossed 
the Baltic into Germany and pressed their way down to the 
Danube. In 552 Justinian's general Narses employed 5,000 
of them as auxiliaries in his war in Italy, where they learned 
of its fertility and desolation. In 568, under the leadership 
of Alboin, whom they had elected king, the whole nation, men, 
women, children, slaves and chattels, crossed the Alps and 
descended into Venetia, whence they spread over northern 
Italy. They came with primitive German customs, divided 
into tribes or clans led by elective chiefs called Aldanes. 
The tribes united in choosing a king when war rendered con- 
cert of action necessary, but his authority seems to have prac- 
tically terminated when war was over. After Alboin had been 
murdered and Clepho, his successor, killed by a slave, they 
chose to do without a king for ten years, and the tribes ranged 
over Italy and across the Alps into Provence. Settlements 
were made by them in various parts of the peninsula along- 
side the Romans and remnants of the Goths. The Lombards 
were fierce and warlike, but never established a firm dominion 
over all Italy, though they became the dominant portion of its 
population.' They retained their ancient customs and laws 
more persistently than the Goths, and in 643 their king, 
Rothari, published a compilation of their laws, which was 
promulgated, not as emanating from his authority alone, but 
with the counsel of his zvitan and the assent of the armed 



MEDIAEVAL EUROPE 355 

folk-moot of the Lombard nation. It prescribes the were geld 
to be paid for homicide, laws against armed violence, rules of 
inheritance and of the obligation of the follower to his lord, 
and for judicial combats. The people were divided into free- 
men and alda, serfs, who tilled the soil. It was the Lombard 
invasion that caused the imperial governors to remove from 
Rome to the inaccessible Ravenna, where the shadow of im- 
perial power lingered for a time, circumscribed within a very 
narrow compass. 

During the reign of Odoacer in Italy the Salian Franks 
under their king, Clovis, invaded Gaul from their home on 
the east of the Rhine. By force of arms he extended his do- 
minions on both sides the Rhine, and overthrew the empire 
of the Visigoths in Gaul. He ruled as a fierce and bloody 
soldier. The Merovingian dynasty founded by him lasted 
nominally from 481 to 751. With the vast increase in the 
territory ruled by Clovis and his successors came also a 
corresponding increase of arbitrary power. The ancient Ger- 
manic custom of deciding public questions in general assem- 
blies of the people, which was entirely practicable for a small 
compact tribe, speaking a common language, became impos- 
sible when dominion was extended over so large a territory, 
including many tribes differing in language and customs from 
each other. The power to rule was acquired through military 
supremacy, and naturally the king became a military despot, 
who soon ceased to consult even the warriors of his native 
race. The king was distinguished from his followers by wear- 
ing long hair, a crown and using a kingly spear. After the 
conquest of Gaul Clovis assumed the patrician robe of Rome. 
At his palace he was surrounded by his companions in arms, 
bound to his person by a special oath of fidelity. In the 
royal household the chief was styled Mayor of the Palace, and 
was the highest official under the king. After him came the 
Marshal, having charge of the royal stables, the Comes Palatii 
his legal adviser and assessor, the Treasurer and Royal Sec- 
retary. These exercised their functions under the king's com- 
mands at the palace or on any mission on which he might 
send them. The kingdom was divided into counties, over 



356 EVOLUTION OF GOVERNMENTS AND LAWS 

each of which was placed a count. In the Germanic part of 
the kingdom the counties corresponded with the tribes and 
in the Roman with a city with its dependent district. The 
count was military leader, judge and taxing officer. Several 
counties were under a duke in some parts of the realm, who 
became the commander of the combined military forces with 
general control over the counts. The counts and dukes were 
assisted by deputies, who filled their places when absent. 
Beneath these there was a headman over each of the hundreds 
into which a county was divided, who was a judge in petty 
causes in time of peace and head man of his hundred in time 
of war. At stated periods the count went into each hundred 
and disposed of causes in a public assembly, being assisted by 
chief men of the hundred, whom he called to his aid. In 
this court the count exercised full power and disposed of life 
and property. Great crimes were punished with death, but 
the family of a murdered man might condone the offense on 
the payment of a sum of money. Trials were conducted in va- 
rious forms, compurgations and combats were allowed among 
the Ripuarians, but not among the Salic Franks, and ordeals 
were resorted to as well as the testimony of witnesses. Be- 
sides the officers named the king had his bailiffs in charge of 
the crown lands, from which he derived an important part 
of his revenue. Aside from these the revenues of the king 
were derived from custom dues on the frontiers, fines and 
compositions in the courts and taxes charged against each 
county, collected and remitted by the count. 

By the time of Clovis German people were scattered 
throughout those parts of Europe that had been dominated by 
the Romans, and German customs variously modified by new 
environments, ripened into laws. Even where the Roman 
element was dominant changed conditions, the decay of learn- 
ing and stagnation of all commercial and industrial pursuits 
led to innovations in the law. The diversity of customs and 
the tenacity with which the invaders held to their own led to 
the application to each person of the law of the tribe, to 
which he belonged rather than the laws of the territory which 
he inhabited. The customs of illiterate barbarians did not 



MEDIAEVAL EUROPE 357 

cover anything like the field of the Roman law but were 
adapted to their needs and were rules of action and of right 
which they had learned in their tribes. Great diversity of 
conditions, lack of a government with power extending over 
any large territory for any considerable period, poverty, lack 
of intercourse between distant people and general ignorance 
and illiteracy were conditions which naturally led to very 
great diversity of customs and local laws. From Scandinavia 
to Spain and Italy the people of each town and community of 
any considerable size had its own peculiar usages. 1 To col- 
late and trace the changes in even those rules that became the 
local laws for considerable districts would be a stupendous 
task. Traces of many of these local customs may still be 
found in existing laws, but increasing learning and intercourse 
constantly tend to uniformity of laws. 

The spirit of the German people had always been opposed 
to polygamy. Clovis became a Christian and was baptized, 
but domestic virtue was something almost unknown in the 
palaces of the Merovingians. The Franks maintained their 
own system of laws, which Montesquieu says were compiled 
after quitting their own country by the sages of the nation, 2 
and the customs of the German tribes which he subdued were 
also compiled by Clovis' order. The Franks had reached that 
stage where title to the land on which the possessor dwelt was 
recognized, and the Salic law of descent was: "i. If a man 
dies without issue his father or mother shall succeed him. 
2. If he has neither father nor mother his brother or sister 
shall succeed him. 3. If he has neither brother or sister the 
sister of his mother shall succeed him. 4. If his mother have 
no sister the sister of his father shall succeed him. 5. If his 
father has no sister the nearest relation by the male side shall 
succeed. 6. Not any part of the Salic land shall pass to the 
females, but it shall belong to the males, that is the male 
children shall succeed their father." 3 The kingdom was 
treated as the property of the king, and its integrity was not 

1 Continental Legal History Series, Vol. 1. 
3 Spirit of Laws, p. 196. 
8 /rf.,p. 326. 



358 EVOLUTION OF GOVERNMENTS AND LAWS 

protected by a rule of succession which passed the undivided 
power from hand to hand. On the death of Clovis his four 
sons fought for supremacy, and similar civil wars, the sole 
excuse for which was the ambition of rulers, were fought in 
succeeding generations. The Merovings were bloody, treacher- 
ous and licentious, and like most other dynasties of absolute 
rulers, later generations inherited the vices without the ability 
of the founder. Though the nominal rule of the kings con- 
tinued for four generations thereafter, the real powers of 
government were assumed by the mayor of the palace in 642, 
from which time forward the kings were imbeciles and the 
names prominent in history are Pepin and Charles Martel, 
mayors of the palace, the latter of whom commanded in the 
great battle (732) which turned back the tide of Mohamme- 
dan invasion. 

The history of Spain under the rule of the Visigoths is ob- 
scure. Though they with the Suevi and Alani gained a lodg- 
ment there early in the fifth century, it was not until after 
their defeat by Clovis at Poitiers that they transferred the 
seat of their government from Gaul to Spain, about 510. 
The Goths constituted but a small part of the population. 
Their government, though monarchical, was elective, and the 
subject Romans were ruled by Roman law. The church early 
gained a strong hold on the Spanish people, and in course of 
time the Goths, who were Arians, through motives of policy 
were led by their king to adopt the orthodox faith. The suc- 
cession to the throne was the occasion of a great number of 
civil wars. The people at the time of the Saracen invasion in 
711 were divided into a few very rich and a dependent multi- 
tude of slaves. They offered but a weak resistance to the 
Mohammedans, who completed the conquest of the country 
within the next two years and put a final end to the Visigothic 
rule. The division of the state for governmental purposes 
was similar to that of Gaul, the ancient Roman civitates being 
used as the basis of local government. 

The long and vigorous reign of Charlemagne, 768 to 814, 
stands out in bold relief in a long period of darkness. Of his 
eminent abilities there can be no doubt, and while his morals 



MEDIAEVAL EUROPE 359 

lacked much of even an approximation to virtue, he yet was 
far better than his Merovingian predecessors. He not only 
restored to the kingdom all that had at any time before be- 
longed to it, but for the first time in history he joined Ger- 
many, Gaul, Italy and northern Spain in a single empire. 
Though his government was administered on substantially the 
same system as that of his predecessors, it was infused with 
vitality through his remarkable energy and industry. He was 
not a stranger to any part of his vast empire. Not only did 
he visit every quarter in person but his special Missi Dominici, 
traveling legates, were constantly bringing him information 
of the condition of affairs in every part of the realm. Like 
all other rulers, who before his time had acquired extensive 
dominion in the western empire, he felt the charm of the 
Roman imperial name. In 800 Pope Leo III crowned him in 
St. Peter's as Augustus, Emperor of the Romans. The re- 
ceipt by Charles of this title at the hands of the Pope carried 
with it a recognition on the part of the military ruler of the 
west of the spiritual supremacy of the Pope, and throughout 
many succeeding centuries this recognition carried vastly 
more weight, and the precedent was of vastly more value to 
the Pope, than the coronation was to Charles, whose dominion 
had resulted from his own capacity without important aid 
from the church. In another aspect this recognition of spirit- 
ual authority was important. It was followed by a recogni- 
tion of the need of a moral basis for the exercise of authority. 
He required all his subjects above the age of twelve to take 
% new oath of allegiance to him as Emperor, to be administered 
by the local clergy, who were required to warn all, "That this 
vow of homage was not merely a promise to be true to the 
Emperor and to serve him against his enemies, but a promise 
to live in obedience to God and His laws, according to the 
best of each man's strength and understanding. It was a vow 
to abstain from theft, oppression and injustice, no less than 
from heathen practices and witchcraft, a vow to do no wrong 
to the churches of God nor to injure widows and orphans, of 
whom the Emperor is the chosen proctector and guardian." 
He taught submission to the moral law and recognized the 



3<5o EVOLUTION OF GOVERNMENTS AND LAWS 

churches the representative of the Holy Empire. The gov- 
ernment of Charles, like that of his predecessors, was thor- 
oughly despotic in character. It, like all despotisms, derived 
its qualities from the ruler. To carry his will into effect he 
selected men who carried out his policies, and like every other 
great leader he had a keen perception of the merits and capa- 
cities of men. To preserve the system in its vigor the energy 
and capacity of Charles himself was required. It has been the 
fate of every despotism to have the successors of a great 
founder wanting in some, and often in all, the essential quali- 
ties which render despotism a refuge from anarchy. Under 
the weak and good natured reign of his son Louis the empire 
crumbled. The practice of dividing it as an inheritance among 
the children of the ruler obtained and, coupled with revolts of 
local rulers, resulted in the complete dismemberment of the 
state after the death of Louis. The acceptance of the im- 
perial crown from the hands of the Pope by Charles bore the 
full measure of its fruits under the reign of the pious and 
well meaning Louis, who acknowledged the supremacy of the 
Pope in spiritual affairs without exacting in return, as his 
father had done, an acknowledgment by the Pope of the tem- 
poral superiority of the emperor. The submissiveness of 
Louis to Papal authority and his exemption of church prop- 
erty and its tenants from taxes and military service, creating 
the tenure known as frank almoin, which required merely 
prayers for the welfare of the emperor and his children and 
the empire, was of immense advantage to the church and 
correspondingly weakened the state. The great empire of 
Charles was divided among his grandsons, and the Frankish 
principle of division was continued among their descendants. 
The right to rule was treated as the property of the ruler, 
rather than a trust exercised for the good of the people. This 
breaking into fragments, with constant warfare between rival 
claimants of territory, became chronic among the Carlovin- 
gians, as it had been with the Merovingians. 

In the latter part of the eighth century the Vikings made 
their appearance in England and on the coasts of the Frankish 
empire. They were a hardy race of navigators, dwelling on 



MEDIAEVAL EUROPE 361 

the Danish and Scandinavian peninsulas, whence they issued 
in growing numbers and with increasing boldness to pillage 
those parts of the country most accessible from their boats. 
From the time of Tacitus they had been noted as sailors, and 
they now appeared as pirates and most determined warriors. 
In an age when might made right, it is perhaps invidious to 
designate them by a name which is now so opprobrious. It is 
difficult to draw a clear line between their robberies and those 
of the organized forces on the continent. That they were in 
the lead of all other people as navigators is clear, and it is 
said that they fought with superior arms and protected by 
coats of mail. That their object in their raids was plunder 
rather than the acquisition of land, and that they scattered in 
numerous fleets and attacked widely distant places under sepa- 
rate leaders, exhibits a difference in methods, if not in prin- 
ciple. Their raids increased in numbers and boldness, till in 
911 Charles the Simple granted them an ample district be- 
tween the Somme and Seine, on condition that it should be 
held as a fief under his sovereignty. The Norsemen did 
homage as his vassals, though with ill grace, and accepted the 
Christian religion. After this settlement the piratical inroads 
were substantially at an end. 

We have seen how, proceeding from Italy as a base, the 
Roman power was extended in all directions, and how Roman 
rule was imposed on the natives of Spain, Gaul, Britain and a 
portion of Germany. We have also seen how incoming waves 
from the unknown regions of new and unsubdued people swept 
back from north and east over all the western portion of the 
empire, how Goths and Lombards became intermingled with 
the ancient people of Italy, how Vandals, Goths and Suevi 
were settled in Spain, and all overthrown by the Saracens, 
how successive irruptions of Germanic people had broken into 
Gaul, with the final establishment of the great Frankish em- 
pire, and how as a result of these movements of people the 
empire had fallen and the Romans had ceased to be the ruling 
element in either quarter. In our effort to gain a clear view 
of the forces which were at work during what is regarded as 
the dark ages of European history, we have still to trace the 



362 EVOLUTION OF GOVERNMENTS AND LAWS 

4 

growing power and influence of the church and the monastic 
institutions. Out of the Asiatic possessions from the incon- 
spicuous Judean province was brought to Rome the religious 
and moral teachings of a person so obscure as not to be 
known to the Roman republic of his time. That religion 
proclaimed the universal brotherhood of man and fatherhood 
of God. The Jews looked for a temporal ruler in their Mes- 
siah, who should establish their supremacy over the other na- 
tions of the earth. They failed to grasp the meaning of his 
teachings. They did not perceive, nor have Christians in suc- 
ceeding ages realized, that the moral principles he announced 
contain the vital principle on which human relations every- 
where and at all times should be regulated, that these prin- 
ciples are the universal constitution, on which all governments 
and all laws must be based in order to develop the highest 
type of human society and the maximum of human happiness. 
Though Caesar held power of life and death over all his vast 
empire, and his will was law to the 100,000,000 or more in- 
habitants of the countries ruled from Rome, Christ's sermon 
on the mountain to a few followers, unheard and unknown to 
the great multitude of people of his time, has exercised an in- 
fluence on the people of after times incomparably superior to 
that of all the Caesars. Yet its full meaning and significance 
are but dimly perceived and imperfectly understood, even by 
the wisest, and to this day rulers and leaders in the most en- 
lightened lands are regarded as exempted from obedience to 
the golden rule, "Therefore all things whatsoever ye would 
that men should do to you, do ye even so to them, for this is 
the law and the prophets." The impression seems to prevail 
that the law of necessity applies with especial and controlling 
force to rulers and law makers, and exempts them from obed- 
ience to the moral law. The unselfishness and self-sacrificing 
spirit of Christ are somewhat distasteful to the average man, 
and self denial is a virtue seldom looked 'for and more seldom 
found in high stations. 

Whether the moral teachings of Christ be regarded as pri- 
marily for the happiness of the souls of men in a future state, 
or as essential to human welfare in this life, is unimportant for 



MEDIAEVAL EUROPE 363 

our present purpose, for we are only concerned with the moral 
law as a guide to human conduct. There seems little if any 
room to doubt that Christian doctrines were taught at Rome 
by the apostles Peter and Paul with some success, and that 
they gathered about them a community of converts to the 
Christian faith. In like manner congregations of believers 
were gained in the great centers of population in the east and 
in Greece. The leading characteristics of the earliest Chris- 
tian societies were the spirit of brotherhood and equality, and 
contempt for power, wealth and social distinction. For the first 
three centuries Christians were persecuted, and no attempt 
was made to gain temporal power with Christianity as a foun- 
dation. Nothing could present a stronger contrast, than the 
brutality and viciousness of Roman society as exhibited at the 
public combats and butcheries in the arena and the licientious- 
ness and depravity in the palace and houses of the wealthiest 
and most prominent citizens, and the humble and devout 
Christian societies of the time of Nero. With growth in 
numbers came increased influence and ambition to lead. As 
early as 313 the existence olf ecclesiastical corporations with 
common property was recognized by the edict of Milan, and 
in 321 their right to acquire property by bequest was con- 
firmed. With the conversion of Constantine the days of ex- 
treme Christian humility were over, and the clergy labored to 
add to the wealth and power of the church with such success 
that, in 370, Valentinian deemed it necessary to prohibit the 
clergy from receiving bequests from women. Not from any 
inherent weakness of principles, but from the influences at 
work on the men who became the representatives of Chris- 
tianity, the purity of its doctrines became obscured, and the 
every day worship in the churches became debased to the ado- 
ration of images and relics, to worship of the virgin and the 
saints, of spurious pieces of the true cross and other visible 
objects, supposed to be possessed df mysterious power by 
reason of their association with some miraculous manifesta- 
tion. Purity of life, so distasteful to the fierce and head- 
strong barbarians, could not be enforced, so in lieu of it the 
church exacted tribute, penance, and above all faith in the 



364 EVOLUTION OF GOVERNMENTS AND LAWS 

vicarious atonement, and granted absolution from sins com- 
mitted. Elaborate ceremonies, altars, images, substitutes for 
the idolatries of the barbarians, obscured and took the place of 
the worship of the unseen, living spirit, and of an effort to 
follow the moral law in its purity. . As early as the second 
century there seems to have been some claim otf superiority 
over other churches put forth by that of Rome. Little by 
little the Roman bishop assumed authority over the other 
churches. At the council of Nicaea, 325, the rank of the three 
patriarchates was established, first, Rome, second, Alexandria, 
third, Antioch. By the end of the fourth century the claim of 
precedence had gained such recognition, that questions arising 
in the various churches of the west were submitted to the Ro- 
man bishop, whose decretals were accepted as authoritative, 
and Innocent I, 402-417, conceived the universal ecclesiastical 
supremacy of Rome. The establishment of this supremacy 
in practice was of slow and uneven growth. Leo, 440-461, 
established the right of appeal by a bishop from the decision 
of his metropolitan to Rome, and thereby assumed pontificial 
authority to pass judgment on the acts and claims of the 
metropolitans as his inferiors. Under Gregory I, 590-604, 
the territorial possessions of the church were greatly increased, 
and under his vigorous administration the power and influence 
of the pontificate strengthened. Prior to Gregory III the 
privileges of the popes had been recognized and confirmed by 
the eastern emperor, but in 731 Gregory excommunicated the 
Iconoclasts, and in return the Emperor confiscated the church 
properties within the territories which still submitted to his 
rule. Thenceforth the papal authority ceased to be in any 
degree dependent on the imperial. In 752 Pepin was anointed 
and crowned king of the Franks by the papal legate Boniface, 
and in 754 he handed over to Pope Stephen III an extensive 
territory, which he had wrested from the Lombards, including 
Ravenna, to be held and enjoyed by the pontiffs of the apos- 
tolic see forever, and this grant was largely increased by his 
successor Charlemagne. Thus in the course of about 750 
years from the days of Peter and Paul, who laid no claim to 
worldly power, the head of the church extended his power 



MEDIAEVAL EUROPE 365 

over the great ecclesiastical organization which had spread 
over Europe, and became a temporal ruler over a considerable 
territory. At the end of the eighth century the head of the 
church was not only a temporal ruler over the papal states in 
Italy, but he assumed the power to dispense with the ob- 
servance of the canonical law, under conditions to be de- 
termined by himself, and the vast power of conferring 
privileges on monastic and church establishments throughout 
the dominions of the western monarchies. The choice of 
bishops was subjected to his approval and disputes on mat- 
ters ecclesiastical were appealable to Rome, where full juris- 
diction was asserted. The conquests of the Saracens in the 
east removed the rivalry of Antioch, Jerusalem and Alex- 
andria, and the west became the seat of that faith which was 
born in Asia. The coronation of Charlemagne by the Pope 
was an assumption on the part of Leo of spiritual superiority 
over the ruler of the "Holy Roman Empire." Leo recognized 
the temporal power of Charles, and in return Charles acknowl- 
edged the spiritual rule of Leo. The weak Louis became sub- 
servient to the head of the church. Following this exaltation 
of the head of the church to temporal power came a period of 
misfortune and of moral degradation, in which the pontificate 
became a subject of corrupt bargaining, from which it did not 
recover till the election of Gregory the V, 996-999. Though 
in course of time despotic characters were developed, the office 
of Pope was always elective, and the prevailing spirit of the 
church was democratic. 

Another product of the Christian religion was the monastic 
establishments, which exercised such a profound influence 
throughout Europe during the darkest period of its history. 
The life of the ascetic hermit had been recommended by 
Gautama as that most favorable to spiritual purification, and 
religious societies, similar to the monastic institutions of the 
Christians, were formed under his teachings and became very 
numerous among Buddhists. The leading resemblance of the 
Christian and Buddhist societies was in the close association 
of men, whose lives were devoted to religious exercises and 
aims, dwelling together in celibacy under rigorous rules of 



366 EVOLUTION OF GOVERNMENTS AND LAWS 

life, to which they voluntarily submitted. The leading differ- 
ence was, that the doors of the Buddhist institutions were open 
to pass out as well as in, and the individual was at all times 
loaded with the burden of his own salvation through good 
deeds and purification of his spirit, while with the Christians 
the doors were closed to those who would withdraw, and 
spiritual salvation was made to depend, not on deeds and in- 
dividual merit, but on ifaith and conformity to the require- 
ments of the church. From the most ancient times the life 
of the hermit has been adopted by men of a certain peculiar 
cast of mind, and early in the history of Christianity solitary 
dwellers in the desert gained great renown for sanctity, among 
the most noted of whom were Paul and Anthony, natives of 
Egypt in the third and fourth century. 

The first great monastic society was founded by Pachomius 
on the island of Tabennae in the Nile in the first half of the 
fourth century. Under the rules of the order the monks were 
distributed into cells, each containing three inmates, known as 
syncelli. A large cluster of such cells was called a laura, in 
which was one common place for meals and assemblies. Work 
and food were apportioned to each according to his strength, 
and the dress was regulated, consisting of a linen tunic with 
a goat skin upper garment, which they were not permitted to 
take off at meals or in bed, but only when assemblied for the 
eucharist. They were divided into twenty-four groups, and 
each group into bands of tens and hundreds under decurions 
and centurions, all under an Abbot, who, as such institutions 
multiplied, was subject to the Superior. The finances were 
managed by a steward. Their usual food was bread and 
water, with occasional oil, salt, fruit and vegetables for luxu- 
ries. Meals were eaten in silence, each wearing a cowl to 
hide his face. They assembled twice daily fior common 
prayer, and for communion on Saturdays and Sundays. They 
tilled their lands and wove mats, baskets and in course of 
time manufactured many other articles for sale for the com- 
mon fund. Pachomius induced his sister to found a convent 
of nuns under similar rules. At the time of his death Pach- 
omius had 1,400 monks in his own monastery and 7,000 under 



MEDIAEVAL EUROPE 367 

his authority. The order spread rapidly in Africa, Asia, and 
then into Italy and western Europe. By the fifth century 
the numbers are said to have increased to more than 100,000 
in Egypt alone. 

In 529 Benedict drew up his celebrated code of rules, which 
became the law of the very numerous Benedictine monasteries 
which spread over western Europe. Worship, study, work, 
obedience, silence and humility, were the leading ideas in- 
culcated. This code was elaborated in seventy-three chapters. 
It exhibits a strange mixture of excellent principles and 
vicious ones. Monasteries formed under this code were vol- 
untary associations of men, who were required to dispose of 
all their private property, and who became equals on entering 
the society, except that their rules were enforced by an Abbot 
elected by themselves, and all important matters were decided 
after consultation with the whole body. In large monasteries 
there were cleans selected for merit, and each monastery had 
its steward, charged with the keeping df its supplies. All 
labor was performed by the monks, who took turns in the 
kitchen. Hours of work, of study and of prayer, were regu- 
lated, as were all matters of dress and of eating. Confession 
of faults was enjoined, penances, fasts and scourgings were 
imposed for breaches of the rules of the order, with expulsion 
as the ultimate penalty for persistent misconduct. Guests 
were entertained by the Abbot in separate apartments, and the 
monks were not allowed to speak to them, except with special 
permission. A probation amounting to about a year in all 
was required of applicants seeking to join the order. All 
strife and contention were prohibited, and no monk could go 
out into the world without leave of his Abbot. The system 
required the exercise of the virtues of industry, study, self 
denial and the recognition of brotherly equality. These lie 
at the foundation of all social progress. It also exacted rigid 
observance of religious forms, tending to evil or good ac- 
cording to the spirit of the individual, and seclusion from the 
outside, wicked world, which contracted the field of vision 
and influence and dried up the natural sympathies of the 
monks, while protecting them from the dreaded contamina- 



368 EVOLUTION OF GOVERNMENTS AND LAWS 

tion of a corrupt society. It separated the sexes and defied 
the imperative law of reproduction. In this it prevented that 
highest and purest human combination, the Christian family, 
with its voluntary devotion to succeeding generations. Con- 
vents were also established for females with similar rules. 

The rapid rise of these religious societies was contempo- 
raneous with the decay of Roman power and the tide of Ger- 
manic invasion. The monastery with its buildings, its 
cultivated lands, its work shops and school, became a promi- 
nent feature of all Christendom, not only on the continent but 
in the British Isles as well. It was a republic of peace, indus- 
try, study and devotion, amid external surroundings of war, 
cruelty, indolence and ignorance. It grew in wealth and im- 
portance by reason of its corporate constitution and perpetual 
succession, and the celibacy of its inmates yielded no heirs 
demanding an inheritance. It offered a refuge to those who 
wished to shun the hardness of the outer world. Other codes 
for the government of monastic societies had been formulated 
before that of Benedict, notably that of Basil, which became 
generally followed in the east, and numerous modifications of 
the Benedictine rules were made in after times. Many so- 
cieties in course of time became rich and licentious. Abbots 
like other men became fond of power, and the encroachments 
of monastic holdings on the realms of the rulers excited 
jealousy and hostility. 

With the decline of the empire of Charlemagne and the 
civil wars and struggles over succession to local authority 
arose that form of social organization and land tenure known 
as the feudal system. With the Romans, as we have seen, 
land was treated as subject to ownership, bargain and sale in 
much the same manner as chattels, and there is no sharply 
drawn line in the law between landed and other property. 
After the Germanic tribes gained settled habitations and rec- 
ognized title to tracts adjacent to their dwellings, the title 
of the possessor was a full and perfect one, and this was 
termed allodial land. Crown lands, conferred on fa-vorites 
of the sovereign by the kings in later times, were termed 
benefices, and were held by a tenure which implied at first, and 



MEDIAEVAL EUROPE 369 

finally expressed, a compact on the part of the beneficiary to 
support his benefactor. From the practice of conferring 
estates by kings upon their followers in times of wars and 
seizures olf the lands of enemies arose the feudal system, which 
became such a prominent feature of the dark ages. The 
fundamental idea of it was a close union between lord and 
vassal for war. The ceremonies of conferring a fief consisted 
of, 1. Homage. The vassal with head uncovered, belt un- 
girt and without sword or spurs, kneeling, placed his hands 
between those of his lord and promised to become his man, 
from thenceforth to serve him with life and limb and worldly 
honor, faithfully and loyally, in consideration olf the lands 
which he held under him. Homage could be accepted only 
by the lord in person. 2. An oath of fealty by the vassal to 
his lord. 3. Investiture, which consisted in putting the tenant 
into possession. This was done sometimes on the land by 
the lord or his deputy, and sometimes by the symbolical de- 
livery of a turf, stone or other symbol. 

The first, and perhaps most important obligation assumed 
by the vassal, was that of military service under his lord. The 
amount of service which might be demanded in a year de- 
pended on the size of the fief and the usage of the time and 
place. Forty days was the usual term for a knights fee; 
during which he must attend with his own equipment and at 
his own expense. Shorter terms were required for smaller 
estates. Old men and women must send substitutes on pain 
of forfeiture or amercement. The terms of the service re- 
quired indicate the turbulent and disordered state of society. 
The wars of the lord were mostly with near neighbors, and 
partook more of the character of forays of bandits than of 
organized warfare. In some places the obligation of the vas- 
sal did not require him to go beyond the lord's territory, or 
more than a day's journey from it. It was not a system of 
public defense, but an organization for the private broils of 
the chief. As incident to feudal tenures the lord exacted: 1. 
Reliefs. A sum of money required to be paid by the heir of a 
deceased vassal on investiture with the estate. The amount 
was not regulated by any fixed law and was often fixed arbi- 



370 EVOLUTION OF GOVERNMENTS AND LAWS 

trarily by the lord. 2. Fines on alienation by a vassal of his 
estate. This arose from the necessity for the assent of the 
lord to an alienation by the vassal. 3. Escheats and forfeitures 
through failure of heirs or acts or omissions which worked 
a forfeiture of the tenant's rights, in which cases the estate 
reverted to the lord, and this was aided by the doctrine of 
corruption of blood, by which an heir was prohibited from 
tracing descent through an attainted ancestor. 4. Aids. 
These were imposed by the lords on various pretexts, notably 
to raise marriage portions for his sons and daughters, to pay 
expenses of distant expeditions, to ransom him from cap- 
tivity, and generally to meet extraordinary demands on him. 
5. Wardship. During the minority of the heir the lord be- 
came his guardian, and as such had the care of his person 
and charge of his estate. This incident seems to have been 
confined to the system in England, Normandy and some parts 
of Germany, but in France the custody of the land went to 
the next heir, and of the person to the nearest kinsman who 
could not inherit. 6. Marriages. In England, Normandy and 
Germany the lord assumed the right to choose husbands for 
female wards, and in later times to dictate the marriages of 
male wards also. The penalty for refusal to comply with the 
lord's wish was forfeiture of the value of the marriage. These 
incidents of vassalage were unknown in the earliest stages of 
feudalism. They are exhibitions of the tendency of those 
holding superior power to unjustly extend it. 

The obligation of the lord to his vassal was to protect him 
in his possession, and in case of eviction to give him other 
lands of equal value. Where large estates were granted, sub- 
infeudation followed as a natural sequence, and the vassal in 
turn granted portions of his estate to sub-tenants, who did 
homage, swore fealty and gave military service. Thus in 
time there was developed a chain of tenancies ifrom the king as 
lord paramount down to the tenants of the smallest holdings. 
The feudal system was not originally established anywhere by 
legal enactment of the law-making power of a great state, but 
was the outgrowth of customs and conditions and the spirit 
of the times. It therefore was not uniform, but varied in its 



MEDIAEVAL EUROPE 371 

incidents and obligations according to local customs. The all 
pervading essence of it was that the vassal should support his 
lord, right or wrong, in all his contests, and the lord should 
protect the vassal in his holding. The system grew up in the 
ninth and tenth centuries, and by the end of the eleventh had 
become general over western Europe, and in 1088 a written 
collection of feudal customs was made by Beam. 

While the system seems to have had its inception in grants 
of crown lands to followers off the king, the turbulence of the 
times made it desirable for the holders of allodial or frank 
tenure lands to gain the protection of the neighboring lord. 
It therefore became common for the holders of such estates 
to surrender them to the king or neighboring great lord and 
take them back as feudal tenures. Not only did laymen gen- 
erally adopt this course, but monastic and church lands were 
similarly placed under the military protection of a powerful 
neighbor. The titles and ranks of European nobility de- 
veloped from this system. In place of the ancient appointees 
of the Emperors, who were assigned to duties in a particular 
district as political representatives of imperial power, there 
was established a fixed connection between the land and the 
local lord, which the king could not sever. Under the Roman, 
Gothic and Frankish emperors, to the time of Charlemagne, 
there was no necessary connection of political power with 
title to land. Under the feudal system title to land was the 
basis of all political power. From villein to king the station, 
rank and power of each was determined by the relation he 
sustained to land. Slavery disappeared, and serfdom and 
villeinage took its place. Men were no longer bought and 
sold, but the villein was completely at the mercy of the owner 
of the soil to which he was attached. From the permanence 
of the relation of the lord to the soil arose a barrier against 
the arbitrary power of the king. The great vassal could not 
be displaced or denied his local authority and importance. Be- 
hind him stood the strength in arms of his retainers. The 
spirit of the times, concurring with the genius of ifeudalism, 
gave to the great landholders an importance and permanence 
of power, which ripened into that proud titled aristocracy, 



372 EVOLUTION OF GOVERNMENTS AND LAWS 

that still exhibits such pretensions of superiority. After the 
noble orders had become fairly established by transmission of 
estates and power from one generation to another, and an 
idea of distinctions of blood and family had taken firm root, 
kings assumed the power of conferring rank on their favo- 
rites, independent of territorial possessions. Churchmen did 
not escape the all pervading distinctions, which rated the idle 
nobility so ifar above the toiling or trading community. Pre- 
lates and Abbots ranked as feudal nobles, and swore fealty for 
their lands, over which they exercised the same power and 
jurisdiction as the lay nobles. While the lands of churches 
and monasteries were not generally military tenures, it was 
not uncommon for them to furnish their quotas to take part 
in the sovereign's wars. 

Among the early Germanic tribes all public questions were 
determined in a general assembly of freemen. The custom 
of holding general assemblies was continued by the Lombards 
in Italy and by the Franks as late as 882. The capitularies 
of Charlemagne purport to have been ordained by the king 
with general consent. Thus the law-making power was re- 
garded as still residing in the body of freemen through the 
Merovingian and until the decadence of the Carlovingian 
dynasty. With the establishment of the feudal system legis- 
lation ceased in France, and »for three centuries no general 
laws were established. The king conferred as much as he 
pleased with his courtiers and took such advice as suited him. 
The great nobles in like manner were surrounded by their 
retainers. To so low a state was the central authority reduced 
that Louis IX in his Establishments says that the king cannot 
declare any new law in the territory of a baron without his 
consent, nor can the baron do so in that of his vassal. The 
nearest approach to the exercise of legislative authority was 
the resolutions and agreements of congresses of neighboring 
lords, who undertook to carry out an agreed policy in their 
respective dominions. Ecclesiastical councils, of representa- 
tives of the churches and religious orders, partook more of 
the character of legislative bodies, and were more representa- 
tive in composition than any congress of nobles. Their 



MEDIAEVAL EUROPE 373 

ordinances were of course wanting in the sanction of civil 
legislative power, but the church had its own system of en- 
forcing obedience to its behests by working on the credulity 
and superstition oif an ignorant laity. During the times of 
which we are now speaking there was no general system of 
taxation. The king and nobility depended on their estates and 
perquisities of feudal tenures to maintain their establishments. 
As the vassal furnished his own equipment and paid his own 
expenses in the wars, there was no expense connected with the 
military establishment. 

The feudal system was not adapted to urban conditions, 
commerce or industrial pursuits. The feudal lord was a rob- 
ber and a tyrant, who fortified his castle and encased himself 
in armor, that he might maintain his advantage over the 
weak and defenseless. In the cities, especially of Italy, the 
spirit of republicanism still survived, though often supplanted 
by despotic rule of one kind or another. Venice from its sea- 
protected islands struggled into existence first with twelve 
tribunes, elected annually, to guide the affairs of state. In 
697 they elected a chief magistrate, called the Doge, who was 
general and judge with powers not definitely limited, but who 
acted in important matters with the concurrence of a general 
assembly. He was sometimes permitted to associate his son 
with him. In 1032 limitations were placed on his power. 
He was prohibited from associating his son in the government, 
and required to act with the consent of two counselors, and 
to counsel with the principal citizens on important occasions. 
In 1 1 72 a radical change was effected, and a great council of 
480 citizens was established. This council appointed the doge 
and other important officers. At first the members of this 
body were selected by tribunes chosen by the people, but in 
course of time they assumed the power of confirming or re- 
jecting their own successors, and ultimately membership be- 
came hereditary. In 1 179 the exercise of criminal jurisdiction 
was given to a council of forty members, chosen annually. 
The general care of the state was given in charge to sixty 
councilors, over whom the doge presided. In the fourteenth 
centurv this council was doubled in numbers. The senate was 



374 EVOLUTION OF GOVERNMENTS AND LAWS 

annually renewed by the great council. From this body six 
members were selected, who, acting with the doge as an execu- 
tive board, treated with foreign states, convoked councils and 
performed administrative duties. On his election the doge was 
required to take an oath to observe many restrictions on his 
power. The method off electing a doge was an exceedingly 
complicated combination of choice by lot and by ballot through 
the medium of successive sets of electors. In 1296 the great 
council was closed, and thereafter all but the families then 
members of it were excluded. In 13 10 the famous council of 
ten was created, who, in concert with the doge and his six 
counselors, became the controlling force in the state. Under 
this system the government was vigorously, but tyrannically, 
conducted. The power, wealth, commerce and influence of 
Venice during the darkest period of European history bear 
witness to the superior vitality of an organization which car- 
ries to its head a constant impulse from the whole people, or 
a large and representative portion of them. No other Euro- 
pean state endured so long, or so completely preserved its 
integrity during those years of darkness. The unfailing ten- 
dency, however, for those on whom power is conferred to 
extend it, is well illustrated by its history, as also is the decay 
which always attends a rigid stratification of society and the 
rule of an hereditary aristocracy, which lives without work 
and despises and despoils an ignorant and oppressed prole- 
tariat. The vices of the Venetian nobility were the vices 
which tyrants exhibit everywhere. 

At Rome the idea that the people were the source of all 
political power never became wholly extinct. The spirit of the 
church, if not of the Popes, was distinctly republican. The 
early bishops and their successors, the Popes, were elected, 
and the idea of hereditary power never obtained in the church. 
The celibacy of the clergy effectually prevented it. True 
there were times of gross corruption in the elections, times 
when the papal chair was filled by fraud, by bribery and by 
violence. These evils are not strangers to any form of gov- 
ernment or system of social or religious organization. They 
are manifestations of human weakness and vice. Above the 



MEDIAEVAL EUROPE 375 

church at all times shone the pure light of the teachings of 
Christ, enjoining universal brotherhood and love and de- 
nouncing every form of oppression and wrong doing. No 
system of tyranny could justify itself by any recorded word 
of His. He never attempted to order or advise any form or 
system of human government. "Be not ye called Rabbi, for 
one is your master, even Christ, and all ye are brethren. And 
call no man your father upon the earth, for one is you% Father 
which is in heaven. Neither be ye called masters, for one is 
your master, even Christ. But he that is greatest among you 
shall be your servant, and whosoever » shall exalt himself shall 
be abased, and he that shall humble himself shall be exalted." 
Absolute equality and unselfishness among mortals is the 
spirit of all his teachings. The lofty ideal of voluntary 
obedience to the moral law as the ordinance of God, the sole 
ruler of all, was not sullied by any attempt at creating a gov- 
ernment to be administered by men and subject to all human 
imperfections. Nor did he attempt to formulate rules of 
conduct to cover each specific case, and much less to prescribe 
rules for the government of property rights. With the single 
exception of his teachings with reference to .family relations 
and the sanctity and indissolubility of the matrimonial bond, 
he declared no rules of civil conduct which would be ordi- 
narily denominated laws. His teachings were of the moral 
principles by which every human law, regulation and act, 
must be tested. Rewards and punishments in a future state 
of being were promised as the leading incentives to righteous- 
ness in this life. 

The ancient spirit of Roman republicanism also lingered in 
the great city, and throughout the darkest of the succeeding 
centuries there were shadows of consuls, senates, tribunes and 
other ancient officials of the republic. These temporary and 
relatively insignificant revivals of the ancient system furnish 
little or nothing novel or worthy of extended notice here. In 
the tenth and eleventh centuries the cities of Lombardy, Milan, 
Pisa, Pavia, Genoa, Florence and other Italian cities, regu- 
lated their affairs by municipal officers, chosen by themselves 
To trace the history of each is impracticable and perhaps 



376 EVOLUTION OF GOVERNMENTS AND LAWS 

would be unprofitable, except as they exhibit the superior 
vigor and prosperity of communities which enlist in public 
affairs the combined energies of many, over the petty despot- 
isms of the feudal lords. These cities were subject to more 
or less domination by the emperors, kings and dukes, who 
from time to time asserted and maintained authority over 
them with more or less strictness. The superior advantages 
enjoyed*by the people of these cities stand out in strong con- 
trast to the misery and poverty of the villeins under the feudal 
barons. Thus Milan in the middle of the twelfth century 
was far more populous than any of the capitals of the great 
kingdoms. It was defended by strong walls and deep trenches, 
within which an industrious population dwelt in security, each 
enjoying the (fruits of his own industry and foresight. These 
little republics were not exempt from such jealousies and 
rivalries as prevailed among the ancient cities of Greece, and 
destructive wars were waged from time to time. Against the 
tyranny of Frederick Barbarossa the Lombard cities united 
after the destruction of Milan, and gained victory and inde- 
pendence, but their own jealousies and animosities in turn 
destroyed the league, which had protected them against an 
external foe. A peculiar and most unfortunate state of affairs 
developed about the year 1200 from the division of the dif- 
ferent cities, and of the citizens of each city, between the 
factions of the Guelphs and Ghebelins. As no well defined 
matter of principle or even of policy or interest divided these 
factions, but merely claims of rival princely houses, malice 
and prejudice held full sway, and no ground for hostility ex- 
isted which reason or mutual concessions could remove, city 
was arrayed against city in malignant strife, and in each city 
faction warred with faction the more bitterly because withoul 
justifiable object or excuse. Notwithstanding the rivalries and 
wars of these petty republics, their wealth and prosperity, 
their public works and private establishments, present in strong 
contrast the difference between a free republican city and rural 
despotism. The city governments were generally modeled 
largely after that of ancient Rome. 

While Frederick I maintained his rule over the Lombard 



MEDIAEVAL EUROPE 377 

cities, he placed over each a chief officer, called a podesia, in 
place of the elective consuls. After his expulsion the cities 
quite generally adopted the plan of electing a podesta from 
among the citizens of a neighboring city, whose functions, 
though varying in different cities and at different times, were 
mainly judicial. He was forbidden to marry in the city or 
have intimate relations with any of the citizens. The purpose 
of this was to have a judge who was free from bias or fac- 
tional prejudice. 

The feudal system was not adapted to urban life or com- 
mercial pursuits, and the organization of society in the towns 
never conformed to it. Not only in Italy, but in France and 
Germany, there was at all times a spirit of independence and 
an assertion of the right to local government in opposition to 
the tyranny of feudalism. Along the Rhine, as well as in 
other parts of both countries, the feudal barons in their forti- 
fied strongholds became robber chiefs. The people gathered 
in the towns formed trades guilds, chose councils, and by of- 
fering an asylum to all who chose to join them, grew in 
numbers and in power. 

On the deposition of Charles the Fat in 888 the Frankish 
empire was divided, and the separate existence of the German 
empire under Arnulf commenced. In accordance with an- 
cient customs election was the only title to chief power. Just 
how or by what classes of people the choice was made is not 
made very clear, but it seems to have been in a general as- 
sembly of the five nations of Germany. The German em- 
perors assumed to be the successors of the Roman emperors, 
and they claimed authority over the Holy Roman Empire, 
which bore a shadowy existence through this long period of 
strife and disorder, with little or no real power beyond the 
immediate domain of the holder of the imperial title. The 
actual choice of succeeding emperors appears to have been 
made by the nobility, ratified perhaps to some extent by general 
assemblies of the people, but with the growth of the feudal 
system the actual power of the emperor became so slight that 
it was scarcely sought after. At the election of Lothaire in 
1 124 there was what is termed at pretaxation, or selection of a 



378 EVOLUTION OF GOVERNMENTS AND LAWS 

candidate by ten persons, in whose choice the princes agreed 
to acquiesce. Later the electoral college was composed of 
seven members, the archbishops of Mentz, Treves and Co- 
logne, the duke of Saxony, the count Palatine of the Rhine, 
the king of Bohemia, and the margrave of Brandenburg. The 
powers of the emperor are not easily stated, nor were they 
ever clearly defined, but rather dependent on the character of 
the person filling the office and the temper of the people at 
the time. His claim of sovereignty over Italy was given 
more or less recognition, but never amounted to an effectual 
direction of affairs. The spirit of the feudal lords was such 
throughout Germany, as well as all parts of Europe where 
feudalism prevailed, as to deny the right of any superior to 
interfere with local affairs in their dominions. The feudal 
baron was the political entity. He waged war when, with 
whom, and as he pleased. That now clearly recognized dis- 
tinctive function of sovereignty, the right to form alliances 
and make war or peace, was then freely exercised by each 
feudal landlord. The Emperor of Germany, the French king 
and other potentates, were powerless to prevent the private 
wars among their vassals, nor were they able to command 
their support in contests with outside ifoes. For three cen- 
turies after the breaking up of the Empire of Charlemagne 
the history of Europe is not to be traced as that of organized 
states with settled governments and laws. The first and far 
most prominent political fact was the growing power of the 
feudal lords. That power was exercised singly by each in 
accordance with his own sense of honor. Pride, arrogance, 
disregard of human life, detestation of labor, of learning and 
of all useful callings, were the prevailing sentiments of the 
nobility. It is indeed difficult to detect anything good in the 
system. It was as if the free Germanic tribes had been con- 
verted into petty despotisms, in which the freemen had be- 
come serfs and the chief a tyrant. The cities and towns of 
Germany and France were of little political importance in 
those times, as compared with the great landlords and their 
vassals, and most of them found it necessary to place them- 
selves under the protection, which often meant at the mercy, 






MEDIAEVAL EUROPE 379 

of a neighboring chief. In Italy alone the feudal barons were 
placed under some restraints, and in many instances required 
to dwell within the town and submit to its regulations. The 
church and the monastic establishments preserved whatever 
remained of learning, and alone afforded a bond of union 
throughout the warring fragments of the ancient empire. 
Within the monastery labor, study, equality and self-denial 
were still the precepts, if not generally the practice. The 
barbarity of the age, however, had its influence on these insti- 
tutions. Superstitions derived from ancient and impure wor- 
ships were imported and made part of the stock in trade of 
the clergy. The pure morality of Christ was too lofty for 
practical use in an age so degraded, and saints and images, 
sticks of wood labeled pieces of the true cross, bones of saints 
and martyrs, and other objects to which pious fraud could 
give fictitious virtue, were made objects of worship and held 
forth as possessing miraculous powers. The vice of avarice 
also seized fast hold of the church of him who so vigorously 
denounced it, and absolution for the vilest crimes was granted 
by the church to pious criminals who would pay sufficiently 
for it. Superstition always has a firm hold on him who feels 
that his conduct is vicious, and the abbots and clergy of that 
age found no difficulty in profiting largely from the super- 
stitious fears of the multitude. Not only were the holdings 
of religious establishments so increased as to cover a large 
part of the entire country, but the power and influence of the 
church became predominant. This would have been of in- 
calculable benefit if pure Christian morality could have been 
promoted, but with increase of wealth came corruption of the 
church, and in many places monasteries and clergymen's 
houses became seats of vice and immorality. 

Theoretically the monastery was a refuge for the man of 
peace, who would withdraw from the conflicts of a bloody 
age, but the spirit of war could not be wholly excluded, and 
abbots often found it necessary, or deemed it expedient, to 
arm their followers and take part in the local wars. Nor were 
the church properties always respected by the barons. Pre- 
texts were invented by the powerful to seize the lands held 



380 EVOLUTION OF GOVERNMENTS AND LAWS 

to pious uses by force, and there was no superior authority 
with sufficient strength to insure redress. Corrupt as the 
religious institutions undoubtedly were, they still rendered 
succeeding ages an inestimable service. Of all the treasures 
which one age can pass down to another, that of knowledge 
and wisdom, gained from experience and the inspirations of 
religious teachers, poets and philosophers, is of the most 
inestimable value. To the church and the monasteries we owe, 
not merely the preservation and transmission to our times of 
the sacred writings, but also, the perishable manuscripts in 
which were written the learning of the heathen world, which 
the art of printing has now made accessible to the educated 
people of all nations. Through them, perhaps more than any 
other medium, the light of the Roman jurisprudence has been 
rekindled to become again the basis of judicial action through- 
out Europe. 

The political importance otfi the barons in France, where the 
feudal system attained its most complete development, is ex- 
hibited by the following functions and exemptions which 
they asserted, i. Power to coin money. 2. To wage private 
war. 3. Exemption from all taxation and tribute except the 
feudal aids. 4. Freedom from legislative control. 5. The 
exclusive exercise of judicial functions in their dominions. 
A system recognizing these claims necessarily left the central 
authority a mere shadow. The only semblance of general 
legislative authority seems to have been that exercised by 
general councils of the church. With all its tyranny the 
feudal system contained some germs of social order and civil 
liberty. It recognized a definite obligation resting on the lord 
to protect the vassal, and was based on the idea, if not the 
substance, of mutual support and advantage. The terms olf 
the relation were fixed by general understanding, if not always 
faithfully observed. Within his demesne justice was ad- 
ministered publicly by the lord in accordance with the customs 
of the times, and all mere arbitrary power was theoretically 
denied, though actually exercised. The system flourished for 
about three centuries and begun to wane. The forces which 
undermined it proceeded from two directions, the sovereigns 



MEDIAEVAL EUROPE 381 

and the towns. The king could not maintain his wars suc- 
cessfully with the mere temporary support of his vassals. 
Longer terms of service and money for supplies were indis- 
pensable to the reduction of a fortified town. Long service 
could only be gained with pay. Pay could only be afforded 
by a general system of contribution or taxation. National 
spirit, stimulated by the crusades, and distant wars, inclined 
public sentiment toward strengthening the hands of the 
kings. 

At the other end we find the towns, seats of industry, im- 
bued with a more democratic spirit and inclined to resist the 
tyranny of the barons. Productive industry and peaceful in- 
clinations tended to a greater increase of numbers than that 
among the retainers of those whose only calling was war. 
Not only did the numbers of the townsmen increase more 
rapidly through natural multiplication, but they steadily gained 
at the expense of the nobles through the settlement of villeins 
and small feudatories in the towns, where they were gener- 
ally welcomed and accorded burghers' privileges. The feudal 
system, operating throughout the same great field as the mon- 
astic and church system, reduced the power of the kings to 
a mere shadow of the absolutism of the ancient emperors. 
The popes persistently advanced their claims of spiritual super- 
vision, and in the exercise of religious discipline exerted in 
fact a powerful influence, and often an arbitrary supervision, 
over secular affairs. The papal power was rapidly extended by 
encouraging appeals to Rome in all disputes arising in the 
church, and then of controversies between contending princes. 
Thus Lothair was taken to task for divorcing his wife and 
excommunicated by Pope Nicholas I. Excommunication in 
some states of society might amount to little more than an 
expression of displeasure, but in an age of superstition and 
of general submission to the church it was a heavy penalty 
depriving the offender of all participation in the ministrations 
of the church and of all communion with its members. It 
in effect singled him out as an object of scorn and detestation 
to be shunned and condemned by all mankind. The proud 
Lothair at first treated the action of the Pope with contempt, 



382 EVOLUTION OF GOVERNMENTS AND LAWS 

but was forced to humbly sue at the feet of Adrian II for 
pardon and absolution. The law also added to the force of 
the papal authority a disqualification of the excommunicated 
person to testify as a witness in a court of justice, or even to 
bring an action. A yet more severe weapon wielded by the 
head of the church was the interdict, by which not only the 
offender, but all his subjects, were deprived of religious privi- 
leges. The churches throughout his dominions were closed, 
the bells silenced and the dead left unburied. No rites but 
those of baptism and extreme unction could be performed. 
The penalty fell on the unoffending subjects with the same 
severity as on the guilty ruler. Though the power o)f the 
church was sometimes successfully resisted, and though kings 
sometimes in turn ruled the weaker popes and used them as 
instruments for their own aggrandisement, in an age when 
all learning was the property of the church and superstitious 
veneration of pope and clergy was so general, the interdict 
was an effectual weapon for the execution of papal commands. 
From the anarchistic conditions which prevailed when 
feudalism was at its height modern European society has 
been evolved. The political map of that continent has been 
subject to many and sweeping changes, and still shows many 
small states, constantly armed and expectant of war. No 
firm bond yet binds the people of different nations to each 
other. Narrowness, distrust and inherited hatreds, still bar 
the way to sensible combination and the acceptance by rival 
states of mutual good-will and good deeds. Yet from the 
disorganized and chaotic mass of the dark ages states with 
larger territory, more varied popular elements, and better 
principles have grown up. These we must examine separately 
and in detail. 

Authorities 

Henry Hallam : History of Europe during the Middle Ages. 

H. M. Gwatkin: The Cambridge Mediaeval History. 

Michaud's History of the Crusades. 

Oman: The Dark Ages. 

Continental Legal History Series, vol. I. 



CHAPTER XVI 



Russia 



Our earliest introduction to the inhabitants o/f that vast 
territory now designated as Russia comes through the Greeks, 
and exhi'bits many tribes with varied characteristics. The 
name Scythians was applied quite generally to the nomads of 
the great plains, and also to those who tilled the soil in the 
rich valley of the Dnieper. Many early tribes are mentioned 
by Herodotus and other ancient writers, the relationship of 
which to each other or to modern people it is not our pur- 
pose to trace. From the earliest times central and north- 
western Asia has been a breeding ground, from which has 
issued barbaric hordes that have pushed their way in all di^ 
rections and especially across the flat grassy Russian plains 
into Europe. Their movements have been in main migrations 
of tribes with all their families, cattle and belongings, seeking 
to escape enemies or searching for pasturage or pillage. 
Among the characteristics of most of these people, when first 
mentioned in history, are bravery, cruelty, superstition and 
ignorance. They scalped prisoners, drank the blood of ene- 
mies killed in battle, sacrificed slaves and horses at the funer- 
als of dead kings, and had other horrible customs, yet it 
would hardly be safe to give this as a general statement of the 
manners which prevailed for any long period off time. It can 
be said however that cruelty and indiscriminate slaughter of 
conquered enemies has generally attended the conquests made 
by the swarms which from time to time have issued from this 
breeding ground. The peculiarities of southern Russia have 
rendered it possible for Asiatic hordes to pass quickly with 
horses, cattle and all their households from their Asiatic seats 
into the heart of Europe. Level plains with ample pasturage, 
unobstructed by mountains or great forests, have afforded a 
broad highway, open to all who might choose to travel it. 

383 



384 EVOLUTION OF GOVERNMENTS AND LAWS 

Pastoral tribes, moving with herds and tents, might be equally 
at home anywhere from the mountain slopes of central Asia 
to the Dnieper. The prevalence of periodical droughts and 
resulting failure of vegetation have compelled frequent mi- 
grations, and the necessities olf their situations have driven 
tribe after tribe along this highway. It was the people dwell- 
ing in, or who passed through this grass land, that came in 
contact with Greeks and Romans and successively invaded 
western Europe. The dwellers in the wooded country lying to 
the north never came in contact with either ancient Greeks 
or Romans. 

The foundations of the government which has since ex- 
tended from the Baltic to the Pacific and from the Arctic be- 
yond the Black Sea, were laid in the forest regions from which 
the great rivers flowing into the Baltic, Black and Caspian 
seas have their sources. The dominant race of Russia is 
the Slav, classed as Aryans and allied to the Germans. The 
next most important elements are Finns and Tartars. Inter- 
mixture has produced a composite of which the prevailing 
characteristics are Slavic. 

The Slavs as first made known to us were at a very low 
stage of social development. The family was the political and 
social unit with the father as its patriarchal head. Polygamy 
was allowed, and wives were captured, with or without their 
consent, as a part of the marriage ceremony. The mir was 
an expansion of the family and under the direction oif a 
council of elders called vctche. In its deliberations there was 
little of order, and a decision required the concurrence of all. 
The idea of the right of a majority to rule did not obtain, but 
the majority were forced to make such concessions to the 
minority as would induce them to concur, or to use some other 
effectual means of enforcing acquiescence. The village lands 
were owned in common, except the dvor or inclosure im- 
mediately about the house. A group of mirs was called a 
volost or pagost and was governed by a council of elders of 
the mirs. A chief of the volost chosen by the elders was a 
leader in war but with little or no power in peace. Any 'fur- 
ther union of different volosts was temporary, and no estab- 



RUSSIA 385 

lished authority over tribe or race was recognized. They 
tilled the soil, used coined money of other nations, and had 
considerable commerce. They were workers of iron and 
made swords for export. 

The foundation of the Russian state starts from the ac- 
cepted date of 862, when the Variagi came to rule over the 
Slavs of Novgorod and vicinity, by invitation of the people 
it is said. Rurik, his two brothers and their military follow- 
ing came to establish order and defend the Slavs. Rurik first 
settled at Lake Ladoga, and at Novgorod after the death of 
his brothers. Two other Variagi went down to Kief and 
became leaders off the Poliane. After the death of Rurik his 
brother Oleg subdued Kief, extended his dominion over most 
of the Russian Slavs and in 907 attacked Constantinople and 
imposed tribute on it. Igor, son of Rurik, succeeded Oleg, 
and on his death his widow Olga became regent during the 
minority of her son Sviatoslaf. She began her reign with 
barbarous massacres of the Drevliane, by some of whom her 
husband had been assassinated, and was afterward converted 
to Christianity, but her son refused to follow her example and 
but few of her subjects accepted her faith. On the death of 
Sviatoslaf the empire was divided among his three sons, who 
ruled respectively at Kief, Novgorod and over the Drevliane. 
Civil wars followed, resulting in the death of two of the 
brothers and the consolidation of the whole under Vladimir. 
He was a cruel, sensual despot, who took five wives and kept 
concubines by the hundreds. He became dissatisfied with the 
old religion and made war on Constantinople to conquer the 
Greek Christianity. As terms of peace he demanded the 
daughter of the Greek emperor in marriage and accepted bap- 
tism. He then proceeded in a truly autocratic manner to 
throw down the ancient idols and march the people into the 
rivers to be baptized. His conversion is said to have been fol- 
lowed by a radical reformation of character, by the founding 
of schools and many other works for the good of the people. 
Vladimir partitioned his dominions among his sons and even 
gave a portion to a nephew. They, as usual, fought among 
themselves, and Iaroslaf became master of all. His reign 



386 EVOLUTION OF GOVERNMENTS AND LAWS 

from 1015 to 1054 was a brilliant one and placed Russia 
among the leading states of Europe. He promulgated the 
first code of Russian laws. It recognized the avengers of 
blood and fixed the amount of money to be paid for crime; 
allowed judicial duels, trial by ordeal of red hot irons and 
boiling water, by oath with compurgators, and also provided 
for trial by a judge and jury of twelve men. Punishment by 
death, whipping or imprisonment was unknown. The rule of 
the Variagi was not of autocrats with firmly established 
authority, exercised through a system of subordinate officials. 
The prince occupied relations similar to the Norse and Frank 
leaders with their bands of military companions and followers 
called the drujina. They were his council oif state and his 
guard. From them he chose governors of towns and con- 
stituted courts of justice. They ate at his table and exercised 
a powerful influence on his policy. Sviatoslaf answered his 
mother Olga's exhortations to become a Christian by saying 
that his dmjina would mock him. He owed his strength 
to them and in order to retain it was forced to consult their 
wishes. They were free to transfer their allegiance to another 
when they chose. Prince and drujina were engaged in a com- 
mon enterprise and lived from the tribute they extorted. This 
was fixed arbitrarily, and Igor lost his life by attempting to 
force further tribute from the Drevliane, after he had fleeced 
them once. The drujina was divided into three classes, of 
whom the boyars were the highest. What commerce there 
was was carried on by the prince and his armed warriors. 
The mass of the population were peasants — muzhiks, and 
slaves. The leading city in the time off Rurik and for a 
considerable period thereafter was Novgorod, which is said 
to have then had 100,000 inhabitants. It was a republic with 
ruling power in the assembly of citizens, the vetche, which was 
convoked by ringing the bell. They dictated terms to princes 
and received such rulers as they pleased and on their own con- 
ditions. Iaroslaf confirmed and defined the privileges of 
Novgorod, which subsequent princes were required to take an 
oath to observe. The revenues he might exact were strictly 
limited, as also were his judicial and political functions. He 



RUSSIA 387 

could not execute justice without the concurrence of the 
posadnik, nor reverse a judgment nor take a suit away from 
the city. In conflicts between citizens and the prince's men a 
mixed tribunal decided. He could impose no garrison nor 
colony on them. The chief officer of the city was the posad- 
nik. He was charged with the defense of civic rights, and 
shared with the prince the judicial powers and the apportion- 
ment of taxes. He governed the city, commanded the army 
and directed its diplomacy. The next in authority was the 
leusatski, who was military chief and entrusted with the de- 
fense oif the rights of the people as a sort of tribune. Novgo- 
rod also preserved its spiritual independence by electing its 
own archbishop, who ranked among the chief dignitaries of 
the city. The citizens not only elected but retained the power 
to depose him. Novgorod became a German market, and 
German settlements were made not only at Novgorod but 
also at Ladoga and.Pskof. Their markets were protected by 
stockades, and they maintained a monopoly of the western 
trade. Pskof and Viatka developed later, about the twelfth 
century, as little republics similarly constituted to Novgorod. 
The period following the death of Iaroslaf in 1054 till the 
appearance of the Tartars in 1224 was one of fierce and cruel 
wars, due largely to the division of the country among the 
heirs of deceased princes, aggravated by a conflict as to the 
rule of inheritance between the old Slavonic leadership otf the 
oldest member of the family, by which brother succeeded 
brother, and the claims of the sons. From the dreary accounts 
of bloody cruelty and constant wars no new lesson can be 
drawn. It has had its counterpart in the history of nearly 
every nation on earth. The advent of the Mongols in 1224 
marks the beginning of an important epoch in Russian history. 
The dominion of Genghis Kahn had already been extended 
over Manchuria, Northern China, central and western Asia. 
Nothing could exceed the fierceness and barbarity of his con- 
quests. Indiscriminate slaughter, rapine, destruction of cities 
and property, death, desolation and ruin everywhere, were the 
penalties of resistance, and submission often gained no pro- 
tection. His armies were recruited from all nations, and with 



388 EVOLUTION OF GOVERNMENTS AND LAWS 

prestige once established he drew to his aid a heterogeneous 
army, made up from all the nations with which he came in 
contact. Against his hordes the ever jealous and warring 
petty princes, who ruled in the dismembered states olf Russia, 
could oppose no effectual resistance. The Russians of that 
time were not very superior in their rules of warfare to the 
Mongols. When the ambassadors of the latter came to them 
asking that they abstain from interference in their contest 
with the Paluvtsin, the Russians responded by killing the 
ambassadors. In the battle which followed the Russian army 
was annihilated. This battle however was not followed by 
the immediate subjugation of any large territory. The Mon- 
gol hordes returned to the east, where they were occupied 
with other conquests. In 1237 Oktai, one of the sons and 
successors of Genghis, sent his nephew Batu with an immense 
army into Russia. He quickly overran the grass country of 
the south and spread ruin and desolation everywhere. His 
army penetrated the forests to within fifty miles of Novgorod. 
Mangu, a grandson olf Genghis, took and destroyed Kief and 
put its people to the sword. The difficulties of a hilly timbered 
country impeded the progress of a horde accustomed to the 
open plains, and the obstinate defense of Olmutz in Moravia 
checked their advance. The death of Oktai recalled Batu to 
the east, and the wave of conquest had reached its western 
limit. Though they passed through Hungary into Germany, 
they gained no permanent foothold beyond Russia. Batu 
established his capital at Sarai on the lower Volga, where as 
representative of the great Kahn he "ruled in barbaric splendor. 
By the persuasion of Alexander Nevski Novgorod paid tribute 
to the Mongols. Russian princes were required to appear at 
the capital of the Golden Horde and do homage to its chief. 
In many instances they were compelled to appear in the court 
of the Great Kahn on the further side of Asia. The rule of 
the Mongols was that of military chiefs, interested in extort- 
ing tribute and extending their power, but taking no interest 
in the local affairs of the people. They left those they spared 
with their social system, their local courts and laws unchanged, 
and with possession of their lands, which their nomad con- 



RUSSIA 389 

querors had no desire to cultivate. The conquered people 
were required to pay a capitation-tax, levied on rich and poor 
alike, to be paid in money or furs. The revenue was col- 
lected by farmers supported by the agents and guards of the 
Kahn. In course of time the princes of Moscow undertook 
the collection from their own subjects. The Russians were 
also required to furnish their quota of troops. While the 
Russian princes were allowed to retain their places, it was as 
subjects of the great Kahn, to whose decision they were re- 
quired to submit their controversies instead of fighting them 
out. The corruption of the Kahn's court is reputed to have 
been extreme. The Mongols were converted to Mohammedan- 
ism about 1272. After they ceased to extend their dominions 
by conquest, their manners solftened and we hear no more 
of their extreme ferocity. During the time of their ascend- 
ency the Russians waged successful war with the Swedes and 
Livonians and strengthened their position on the west and 
north. With the rise of Poland there was a tendency to Rus- 
sian concentration about Moscow. 

In the reign of Ivan III the Muscovite autocracy began to 
again consolidate the Russian states. Novgorod had changed 
from a democracy, devoted to the common welfare, to an 
aristocracy divided into discordant factions. In 1470 it sub- 
mitted to the sway of Ivan. By assuming the role of judge 
between the warring factions he took away from them their 
ancient and highly prized privilege of determining all their 
causes at home. They rebelled and he subdued them and 
finally abolished the vetche and posadnik, and in 1478 the re- 
public off Novgorod ceased to exist. The Tartar empire had 
broken into fragments, and Ivan finally threw off the yoke of 
the Horde. Vasili Ivanovitch took away the liberties of Pskof 
as his father had those of Novgorod, abolished its vetche, 
carried off its bell, placed his lieutenant in it as governor and 
transplanted its principal citizens in remote parts, as his father 
had those of Novgorod. Ivan IV, the terrible, extended the 
boundaries of his empire and at the same time hardened the 
autocracy. His merciless executions were numbered by thou- 
sands and included many of the proudest boyars of the empire. 



390 EVOLUTION OF GOVERNMENTS AND LAWS 

In 1556 he assembled the States General for the first time, 
and he was the organizer of the strelitz or National Guard. 
The long and vigorous reigns of Ivan III, Vasili and Ivan 
IV, extending from 1462 to 1584, witnessed the consolidation 
olf the empire, the termination of the policy of dividing it as 
an inheritance and the centralization of power in the hands of 
the Czar. The policy of these monarehs was mainly directed 
toward the firm establishment of the power of the Czar over 
the nobility. The drujina, who were his companions in the 
palace in peace and in the camp in war, had no taste for ad- 
ministrative details, and in the organization of the bureau- 
cratic system, through which the central power acts on the 
multitude, it became necessary to call in the more humble and 
more scholarly sons of merchants and priests. A great num- 
ber of these bureaus, twenty to thirty, with varying and ill- 
defined functions were instituted. One had charge of supply- 
ing the table of the Czar, the princes of the blood and nobles 
whom he fed. Others looked after other domestic and court 
matters. Then there were the prikazin of the palace, of the 
revenue, of secret affairs, petitions, posts, police, buildings, 
slaves, monasteries, army, embassies and of the provinces. 
The revenues were derived from the products of crown lands, 
paid in kind or in money, from a tax on corn, on fires, cus- 
toms, crown taverns, fines and confiscations. Certain branches 
of trade were also monopolized by the Czar and used as a 
means of extorting money from the merchants. 

Three grades of courts of justice were established, that of 
the starosta of the district, a magistrate for every hundred 
plows, the voievod in the chief city olf each province and the 
Supreme Court of Moscow. Trials were had on written or 
oral proofs, a party being allowed to testify in the absence of 
other proof, or by judicial combat. Debtors were treated with 
the greatest rigor. An insolvent was liable to be flogged daily 
for thirty or forty days, after which, if no one would pay his 
debts, he was sold and his wife and children hired out to 
service. Persons charged with theft, murder or treason were 
subjected to a great variety of tortures. Heretics and sorcer- 
ers were burned. Counterfeiters had hot metal poured down 



RUSSIA 391 

their throats. These were for the humble subjects. A noble- 
man who slew a mnjik was only fined or whipped, and ilf he 
killed his slave there was no penalty, for he might do as he 
pleased with his chattel. The church was made subservient 
to the Czar, and the clergy were instructed in the performance 
of imposing ceremonies, but knew little of religion or morality. 

The army was mostly cavalry. The imperial guard of about 
eight thousand was made up of young courtiers. All the 
nobles of the empire, counted at about eighty thousand, served 
on horseback and defrayed their expenses from the revenues 
of their lands. The levy of the free peasants amounted to 
about three hundred thousand. The strelitzi, organized by 
Ivan IV and kept at Moscow, numbered twelve thousand. 
Many foreigners were taken into the service. Soldiers fur- 
nished their own rations mainly for short campaigns. Diplo- 
matic relations were established with other countries of 
Europe. The lower orders of Russia were made up of: i, 
chattel slaves; 2, peasants attached to the lands of the nobles, 
legally free in person but bound to till their masters' lands, 
and 3. free cultivators, who had the right to move from place 
to place and change masters. The second class was by far 
the most numerous. These considered themselves the real 
proprietors of the land, not as individuals, but as communi- 
ties, mirs. The mir, not the individual, paid taxes to the Czar 
and dues to the landlord. The towns were governed either 
by a voievodni, appointed by the prince, or a starosta, elected 
by the assembly from among the gentry. In assessing the 
imposts the starosta convoked the elders of the towns and rural 
mirs. In the family the father had arbitrary power over 
wife, children and sons' wives. 

The nobleman always had a retinue of slaves, which he 
kept about his person and ruled with such rigor as accorded 
with his disposition. The practice of secluding the women 
at home and veiling when away prevailed. Drunkenness and 
debauchery were common in a state of society where illiteracy 
was almost universal. Superstition and ignorance, there as 
elsewhere, were inseparable companions. Holy water and 
relics were more relied on for miraculous cures than the 
medicines of the physicians, and were perhaps safer in the 



392 EVOLUTION OF GOVERNMENTS AND LAWS 

then existing state of the profession. During the reign of 
Feodor, son of Ivan IV, the regent Boris Gudenof promul- 
gated the first Ukase forbidding peasants to remove from one 
estate to another. This was done in the interest of the poor 
nobility, to prevent the great ones from drawing away the 
laborers and thereby leaving their estates uncultivated. The 
number of farmers being inadequate to till more than a small 
part olf the land, the great lords by offering superior ad- 
vantages could prevent the cultivation of the small estates. 
The purpose of Boris in this order was to enable the poorer 
nobility to render military service and defray their expenses, 
which they could not do without the aid of the serfs. After 
the death of Feodor, who was mentally so weak as to really 
exercise no authority, and of his brother Dimitry who was 
probably assassinated, the royal line failed and a time of 
turbulence ensued. For a very short time Vladislas of Po- 
land' was in possession of Moscow and recognized by the 
boyars as Czar, but, led by Minin the butcher of Kozma, the 
Russians gathered and drove out the Poles. Polish dominion 
was hardly a reality and had no effect whatever on the 
growth of the autocracy. 

In 1 613 a great national assembly gathered at Moscow, 
composed of church dignitaries, and delegates olf the nobles, 
the merchants, towns and districts. Michael Romanof, a 
youth of fifteen, was elected Czar, receiving all the votes, and 
became the founder of the existing dynasty. By raising his 
father, Philaret, to the rank of patriarch and associating him 
in the administration of the government Michael was greatly 
strengthened. From the companions and military followers 
of the early princes there had developed a proud nobility, jeal- 
ous and contentious over questions of precedence. Each in- 
sisted on maintaining rank equal or superior to that attained 
by any of his ancestors, and refused to accept a public station 
lower than the highest held by any of his predecessors. Con- 
tentions over these matters occasioned ceaseless striife and 
annoyance at all great gatherings. Feodor III (1676 to 
1682) resolved to put an end to this trouble. He required all 
the noble families to deliver into court their pedigrees, that 



RUSSIA 393 

they might be examined, on the pretext that he wished to 
correct errors in them. He then convoked the nobles and 
with the assistance of the clergy burned all the books of pedi- 
grees before their eyes. 

This was soon followed by Peter the Great (1689- 172 5) 
with an abolition of all nobility, except that based on public 
service, civil or military. Though thoroughly saturated with 
the spirit of autocracy and accustomed to use his arbitrary 
powers without mercy, Peter was still a great reformer of the 
most practical kind. He perceived the superior industrial and 
commercial development of Western Europe, and with the 
spirit of the earnest searcher for knowledge he strove to learn 
their ways and their arts, not their speculative philosophy or 
forms of government. He traveled into other lands and even 
worked as an apprentice in a ship yard in Holland. His eyes 
were opened to some of the most serious detfects of the Rus- 
sian system and some of the wrongs habitually inflicted on 
the weak. He put an end to the seclusion of women and in- 
troduced western fashions of dress and manners. He abol- 
ished the flogging of insolvent debtors and the patrarchate. 
He remodelled the organization of the army in accordance 
with western methods and began the construction of a navy. 
He founded St. Petersburg on the Neva, whence he could com- 
municate with the outside world by sea, having wrested the 
northern country from the Swedes. He brought into the 
empire artisans of all classes from every country to instruct 
his subjects in manufacturing and ship building. He encour- 
aged trading and divided the merchants into guilds. But 
with all his innovations he jealously maintained the autocracy, 
applied the knout and the axe as he deemed best. 

Though the history of the succession of rulers (from the time 
of Michael shows the usual incidents of intrigues, fhurders, 
factions and palace troubles of various kinds, the central idea 
of an autocracy with unlimited power has been steadily as- 
serted by the Czars and acquiesced in by the nation. The 
system of administration has been shaped to effectuate auto- 
cratic rule. The policy of conquest, colonization and Russian- 
izing has been steadily and successfully adhered to, with the 



394 EVOLUTION OF GOVERNMENTS AND LAWS 

result that the Czar now rules over an empire unequalled in 
many respects by any other in the world. Not only have the 
Tartars, who so long compelled the Muscovites to pay tribute 
and acknowledge their supremacy, been shorn of all dominion 
in Europe, but that vast breeding ground of Asia, whence have 
swarmed out barbaric hordes to sweep with cyclonic force 
over the states of Europe, has been reduced to the sway of an 
European state, and is now being colonized by Slavs, who 
carry with them the customs and the language olf the Mus- 
covites. The Turks, kinsmen of the Mongols, find in Russia 
their most inveterate and persistent enemy, and little by little 
have been forced to withdraw from Europe. 

At the base of Russia's social system it still has the demo- 
cratic mir and patriarchal family. Though, looked at through 
western eyes, the government is regarded as arbitrary, cruel, 
corrupt and almost unmitigatedly bad, it has undertaken and 
completed a railroad across the Asiatic continent and taken 
the lead in calling a peace congress to enable European states 
to reduce their vast armies. Unfortunately this has not saved 
it from a most humiliating war with Japan, or the great war 
now raging. Whatever the faults of the Russian system, it 
must be conceded that it is adapted to vast expansion over 
such people as it deals with. How well it ministers to their 
welfare is another subject. 

The most notable legislative acts since the time of Peter the 
Great are the ukases of 1861 and 1866 liberating the serfs, 
the judiciary acts of Alexander II and the establishment off 
the Duma in 1905 by Nicholas II. This was a first step in 
the transition from an autocracy to a constitutional mon- 
archy. By the manifesto of Oct. 17, 1905 Nicholas decreed 
that no measure should become a law without the consent of 
the Imperial Duma, a freely elected national assembly. 
Though three successive Dumas have been elected and held 
their sessions, the transition period is not definitely passed. 
The Czar still asserts autocratic power so far as he deems it 
necessary. 

By the ukase of Feb. 20, 1906, the Imperial Council was 
associated with the Duma as the upper house of the national 



RUSSIA 395 

legislature. This Council consists of 196 members, of whom 
ninety-eight are appointed by the Emperor and the other 
ninety-eight are elective. Of the elective members three are 
chosen by the monks, three by the secular clergy, eighteen by 
the corporations of nobles, six by the academy and universities, 
six by chambers of commerce, six by the industrial councils, 
thirty-four by the governments having zemstvos, sixteen by 
those having no zemstvos, and six by Poland. It is apparent 
from the composition of the Council that imperial influences 
dominate in it. 

The Duma is the lower House of the parliament and con- 
sists of 442 members elected by a very complicated electoral 
system, designed to give control to the land-holding class, 
while allowing the poor to vote. In the first two Dumas the 
radical popular elements predominated. To give the con- 
servatives control the method of election and basis of repre- 
sentation were changed, so that no matter how large a popular 
majority the liberals may have the land-owners will still be 
able to name the majority of the Duma. 

The Russian parliament thus constituted shares with the 
emperor the legislative power, except in measures dealing with 
the organization of the army and navy. The despotism has 
not yet given up the instruments through which despotism may 
be perpetuated. Any member may propose a law, but it must 
be submitted to the minister of the department affected by it, 
who may consider it for a month and then has the right to 
prepare the final draft for consideration of the House. The 
ministers are accountable to the emperor, not to the parlia- 
ment. The Czar has the power under extraordinary circum- 
stances when the Duma is not sitting to issue ordinances 
having the force of law. While these must be laid before the 
Duma at its next sitting, the reserved powers to proclaim a 
state of siege and to prorogue or dissolve the Duma leave the 
Emperor with absolute power whenever he sees fit to use it. 
Nevertheless the Duma as the representative body olf the na- 
tion has a powerful and growing influence and will doubtless 
dominate when it has capacity to direct public affairs. 

By the law of Oct. 18, 1905, a council of ministers to assist 



396 EVOLUTION OF GOVERNMENTS AND LAWS 

the Emperor in the supreme administration was created with 
a minister president. This council consists of the ministers 
of (i) the Imperial Court; (2) Foreign Affairs; (3) War 
and Marine; (4) Finance; (5) Commerce and Industry; (6) 
Interior; (7) Agriculture; (8) Ways and Communication; 
(9) Justice; (10) Public Instruction. Aside from these there 
are the Comptroller and the Emperor's private Chancery. 
There is no joint or common responsibility of the ministers. 
Each is accountable to the Czar and to him alone, and may 
pursue such policy as the Czar authorizes without regard to 
the views of the heads of other departments. The Ministers 
however meet in Council for consultation. They are presided 
over by a President of the Council of Ministers, named by 
the Czar. Important matters arising in either bureau may be 
discussed in these meetings or taken to the emperor privately 
as he may prefer. Unity of control and direction rests in 
the Czar alone. 

Each minister is assisted by a council which seldom meets, 
and also has one or two assistants who actively participate in 
the transaction of affairs. Most o/f the bureaus are divided 
into departments according to the nature of their duties, and 
have officials and clerks charged with the minor details. 

The Senate, established by Peter the Great and designed 
by him as the chief governing body under him, though now 
of far less importance than the Council, has seven depart- 
ments exercising administrative functions, through which the 
laws are promulgated, the acts of governors examined and 
their conflicts with Zemstvos adjudicated. Two departments 
are the courts of review and constitute the highest court of 
the empire, and another pronounces judgments in political 
causes. The Holy Synod, made up of metropolitans and 
bishops, rules religious affairs. 

For purposes of administration the European empire is di- 
vided into fifty gubemiya in Russia and ten in Poland. The 
Asiatic dominions are divided into the lieutenancy of Caucasia 
and the governments of Turkestan, Stepnoye, East Siberia 
and Amur. Each government is divided into districts, nyezd, 
under a police captain, ispravnik. At the head of each guber- 



RUSSIA 397 

niya is a governor. Formerly his powers were those of a 
local autocrat, as representative of the Czar, but now they are 
greatly curtailed. He is assisted by a vice governor and a 
government council, which however is merely advisory. By 
the ukase of 1785 Catharine II confirmed on the dvorniastvo, 
the nobility of each province, the right to name the local 
functionaries and justices, and to supervise and control the 
local administration, justice, police, finances and all matters 
of local interest. Assemblies were held once in three years 
for these purposes, and they appointed the ispravniks and local 
justices. Their assemblies sat, elected boards, and appointed 
commissions to inspect the governor's accounts, but in fact 
exercised very little influence on the administration, which 
received its impulse from the central authority. In 1864 the 
Zemstvo or territorial assembly was established, composed of 
representatives of all the orders. The peasants, the towns 
and the nobility, each elect their representatives separately. 
The representation is apportioned arbitrarily, so that the peas- 
ants, who constitute more than three-fourths of the whole, 
have less than forty per cent of the delegates, and the million 
landowners have over forty-five per cent, the town people 
choosing the balance. The mode 01 f election by the peasants is 
that the heads of families of the mirs choose a council for the 
volost, who choose electors to the zemstvo. These convene 
and name the delegates, glasuyie, who compose the zemstvo. 
The landowners have a voice in the election of their dele- 
gates according to their holdings, the small proprietors voting 
collectively. Zemstvos are not established in all the govern- 
ments, there being only thirty-four at present. The powers 
conferred on the dvorniastvo was substantially all transferred 
to the Zemstvo with others added. There is also a Zemstvo 
of the district with local powers corresponding to those of the 
province. These relate to all matters of purely local con- 
cern. They apportion the taxes, maintain roads and schools, 
but are limited in their expenditures by the demands of the 
general government on the revenues. To much of their legis- 
lation the governor's assent is necessary, even to the repair of 
roads and the increase of local taxes. To other acts the 



398 EVOLUTION OF GOVERNMENTS AND LAWS 

ratification of the Minister of the Interior is required, such 
as large loans. All resolutions of the provincial zemstvo must 
be submitted to the governor, who has a suspensive veto. He 
must send in his decision within eight days. If he vetoes, the 
zemstvo must again consider it, and if again passed it is final, 
except that the governor may still refer it to the minister. 
The controversy is then decided by the Senate. Sessions are 
held annually. For the execution of its will the zemstvo is 
dependent on the governor, over whom it has no control. 
The demand for schools and the exhibition of a willingness 
to pay for them evidence the value of the influence of the 
governed in their own behalf, the mujiks showing the most 
interest and liberality of any class in that direction. The 
worst difficulty met in building up the educational system is 
the interference of the inspectors, who are jealous of the ef- 
fects of education. A remarkable piece of local legislation, 
quite in keeping with the ancient system of land tenures, is 
compulsory mutual insurance of the property of the peasants 
against fire. Among the institutions introduced by the zemst- 
vos were savings banks, local postal facilities, construction of 
highways and railroads, draining of marshes and planting- 
trees on the steppes. The main characteristic of the work 
thus far performed by them is that it is if or the general good 
of the people. To check the freedom of expression in the 
zemstvos, by a subsequent edict it was provided that the chair- 
man should be nominated by the minister, and that he might 
interrupt any speech or stop the consideration of any motion 
or resolution, which in his opinion was inimical to the gov- 
ernment. The different zemstvos were also prohibited from 
communicating with each other. 

At the head of the Judicial System of the empire stands 
the Senate. In reviewing the proceedings of inferior tribu- 
nals it limits its consideration to questions of law and affirms 
or reverses the decision of the lower court, and in case fur- 
ther proceedings are required remands the cause to it. It 
exercises original jurisdiction in the trial of accused members 
o)f the administration, and is the auditor of accounts. It is 
a department of heraldry and the supreme court for the trial 



RUSSIA 399 

of political causes and offenses against the State. It has juris- 
diction over differences 'between members of the administra- 
tion, as well as between the governors and the zemstvos. The 
department of supreme appeal is divided into two sections, 
one for civil and the other for criminal matters, which have 
jurisdiction of causes appealed from all parts of the empire. 
The judges of these departments, as well as of the district 
courts, are appointed by the Czar. There is a nominal right 
of presentation by the remaining members of these courts 
of candidates to fill vacancies, tat their choice must be sanc- 
tioned by a procureur-general, who represents the state as 
one of the officers of each court. This right of presenta- 
tion does not extend to the presidents or vice-presidents of the 
court, but only to the other judges, and the candidates pro- 
posed may be accepted or not. 

In order to give the judges an appearance of independence, 
their tenure is for life, unless convicted of some offense, but 
while they may not be arbitrarily removed from office, they 
may be transferred to a distant province and thus in effect 
condemned to exile. Procureurs are appointed by the ministry 
and removable at pleasure. 

Substantially contemporaneous with the emancipation of 
the serfs came a reformation of the judicial system. At the 
base of it are two sets of courts. For the peasants there are 
volost courts, elected by and having jurisdiction over peas- 
ants only in the volost, which may include one large or several 
small mirs. The mirs name eight candidates from among 
the peasantry, from whom the chieff of the volost selects four 
to sit. To be eligible a man must be thirty-five and able to 
read and write, where such selections are practicable. The 
presiding judge of the court is selected by the assembly of 
elders of the volost. The court sits at least once a fortnight, 
usually on Sundays and holidays. It has jurisdiction in civil 
causes involving one hundred roubles or less, and in petty 
misdemeanors where the maximum punishment is a fine of 
thirty roubles, seven days' imprisonment or six days' work or 
twenty strokes with the rod. Their decisions are not required 
to be in accordance with general law, but are governed by the 



4 oo EVOLUTION OF GOVERNMENTS AND LAWS 

local customs. The rod however may only be used on the 
strong who are able to bear it. Of petty matters their juris- 
diction is extensive, covering those concerning communal 
rights, inheritances and other matters growing out of the 
peculiar organization of rural communities. Appeals are al- 
lowed to the assembly of cantonal rural chiefs in civil cases, 
where imprisonment or corporal punishment is imposed. By 
the reforms of Alexander II justices of the peace elected by 
the district semstvos had jurisdiction over all minor civil 
cases involving five hundred roubles or less and criminal cases 
punishable by one year's imprisonment or three hundred 
roubles fine, but by the ukase of 1889 these, except in the great 
cities, were abolished and in lieu of them the office of rural 
chief was created for each volost with substantially the same 
jurisdiction, and also various administrative duties. These 
chiefs must be landowners, belong to the local nobility, and are 
paid a salary by the state. They are nominated by the gover- 
nor of the province on consultation with the marshal of the 
nobility of the district and confirmed >by the Minister of the 
Interior. The chief has supervision of the financial and 
police affairs of the commune and nominates the members of 
the peasants' volost court. From the decisions of the chief an 
appeal lies to the district assembly of canton chiefs. They 
receive in rural districts 2,200 roubles per year. The district 
courts, which are given general original jurisdiction in both 
civil and criminal causes, have three judges and a jury. The 
judicial reforms of Alexander II, which unfortunately have 
not been steadily carried into effect, contemplated the com- 
plete separation of judicial from administrative powers and 
public trials on the oaths of witnesses with the aid of advo- 
cates, following the most advanced models of western nations. 
Of these district tribunals there were in European Russia 
about sixty, and over them nine appelate courts located at 
St. Petersburg, Moscow, Kazan, Saratof, Kharakof, Odessa, 
Kief, Smolensk, and Vilna. In trials by jury the court ans- 
wers to the law and the jury only as to the facts. The un- 
expected acquittal of Vera Zassulich for the murder of Gen- 
eral Trepof resulted in subsequent denial of jury trial in simi- 



RUSSIA 401 

lar cases, which were transferred to a department of the 
senate or heard before a military court. Reforms in the 
judicial system from the time of Catharine II to the present 
have been introduced modified and abandoned, and with the 
theory of a complete centering- of executive, legislative and 
judicial power in the Czar still fully recognized, all innova- 
tions are to be looked on as tentative. Until the judiciary be- 
comes independent of the will of the Czar, no permanent 
separation of powers can be assured. The ministry are still 
afraid off an independent judiciary, and the system of ap- 
pointments is calculated to insure a degree of subserviency in 
the courts. The vast empire is ruled in fact by the ministers 
and their agents. 

In the actual administration of the government the police 
department plays a most important part. There are two 
classes of police officers, one the regular under the Minister 
of the Interior, the other political, directly under the Czar 
himself. In the districts into which the provinces or govern- 
ments are divided the chief officer is the ispravnik, a police 
officer. From the time of Catharine II till the emancipation 
these officers were elected by the nobility, but are now ap- 
pointed by the governors. A great multiplicity of duties de- 
volve on the police officers. Through them all administrative 
orders must be executed, conspiracies must be detected, con- 
spirators arrested and prosecuted. They are health officers, 
censors, prosecutors in the lower courts, overseers of recruits 
and soldiers of the reserve and supervisors of passports. In 
the small towns and country there is no protection against the 
arbitrary exercise of their authority. It was through the 
famed Third Section of the Chancellery, the state police, that 
the arbitrary autocratic powers of government were mainly 
exerted. Though this has been in form abolished, its sub- 
stance is still preserved, and police agents enter dwellings, as 
well as all other places, at any time of day or night without 
process, and make searches, seizures and arrests at will. The 
governors of provinces close at will any industrial establish- 
ment, forbid an individual to reside in a city, and take politi- 
cal suspects away from the regular courts. The government 



402 EVOLUTION OF GOVERNMENTS AND LAWS 

may at any time place any province or district under a "state 
of extraordinary protection" under the most arbitrary military 
rule. By administative decree the publication of any periodi- 
cal or other publication may be suspended or prohibited, and 
an educational establishment may be closed. In every city of 
any importance there is a colonel or captain of police to whom 
no place may be closed and from whom nothing may be con- 
cealed. His business is to keep all under surveillance, officials 
as well as citizens. To aid him he has secret agents scattered 
everywhere. Every indiscreet remark is reported, often with 
direful consequences. 

The main purpose of the Czar in maintaining his secret 
police was to have a system through which he could keep in- 
formed of the doings, not merely of his subjects in general, 
but of the officials of the empire as well. Of all the difficulties 
under which an autocrat ruling a vast empire labors, none 
is greater or of more moment than that of gaining reliable 
information concerning the multiplicity of affairs which he 
is called on to direct. A secret police, composed exclusively 
of trustworthy and upright men, would be of incalculable 
value to him, but made up of corrupt and unreliable ones it 
becomes a means for perverting the best of intentions on the 
part of the ruler. 

The constitution of Russian society, while now undergoing 
some changes, is still essentially the same as for several hun- 
dred years. More than eighty per cent off the total population 
are classed as peasants and live mainly in their rural villages, 
mirs. The mir is, and has been from a date long anterior to 
the establishment of the empire, a democratic self-governing 
community. It holds its lands in common and pays its dues 
to the government as a unit. The affairs of the mir are man- 
aged" by an assembly including the heads of all the families. 
The tillable lands are divided and apportioned to each work- 
ing unit. Women charged with the support of a family are 
entitled to take part in the assembly. Between the members 
of the community there is equality of right in the village 
property, but the culture is not in common. Pasture lands, 
and in some cases meadow and timber lands, are used in com- 






RUSSIA 403 

mon, the hay of the meadows and trees of the forest being 
divided for use. The custom of building their dwellings in 
village form has long been maintained, and communities which 
have settled in the United States have brought this custom 
with them. In the settlement of the affairs of the mir unani- 
mous agreement is required. All are required to attend meet- 
ings of the mir. The majority may not enforce its will on 
the minority. The assembly of the mir may be convoked by 
the call of any one. The chief officer is the Starosta, who is 
paid by the mir and is charged with the preservation of order 
in the community. He supervises the roads, manages the 
communal funds, the schools and hospitals if any, and any 
other public institutions of the mir. He looks after the col- 
lection of the taxes and deals with the government officials in 
payment of public dues and other matters. He is a general 
police officer and arrests persons charged with offenses. He 
is the general business representative of the mir, but in all 
things he is its servant, not its master, and must carry out 
its orders. 

A collection off mirs, varying to include from six hundred 
to four thousand persons who were formerly charged with 
poll tax, is called a volost. At the head of this is a starschina, 
elected by representatives of the mirs, who holds for a term 
of three years. He is assisted by a board, volostnoye pravl- 
mye, made up of all the starostas of the mirs or their assist- 
ants or special representatives chosen by the mirs. Important 
matters are decided by this board and minor ones only by 
the starosta. Aside from these officials the mirs and board 
employ such agents as their affairs require and pay them for 
their services. An important personage in the mir is the clerk, 
who keeps its records, and though without any recognized 
authority, by reason of superior education often wields great 
influence. The scarcity of persons able to write frequently 
makes it necessary to bring a clerk from without. 

The volost assembly elects the judges, appoints representa- 
tives to district assemblies, and provides (for roads, schools, 
hospitals and public works which a single mir cannot under- 
take. The assembly of the mir has power to discipline its 



. 



404 EVOLUTION OF GOVERNMENTS AND LAWS 

members, even to expel them, and to admit new ones. Meet- 
ings are usually held in the open air and are without any set 
form of procedure. Sunday after mass is a favorite time of 
meeting. While unanimous agreement is necessary to a de- 
cision in the mir, a majority may decide in the volost assembly. 

Similar in principle to the peasants' commune is the artel, a 
name given to an association of workmen engaged in the same 
trade and working in concert. A head man is elected by the 
members, who represents the artel in its dealings with em- 
ployers and the outside world. The wages earned by all are 
equally divided among the members. The artels are usually 
small, seldom exceeding twenty in number, and they expel 
and admit members at will. 

All nobility in Russia starts from official station. Two 
sorts are recognized, hereditary and personal. The heredi- 
tary from the time of Peter are the officers of the army having 
the grade of ensign or higher and civilians of equal grade and 
their descendants. Inferior public servants belong to the per- 
sonal nobility and are merely free citizens. The number is 
necessarily very great, about six hundred thousand hereditary 
and three hundred and filfty thousand personal. The feudal 
system never obtained in Russia, and it has no nobility of the 
kind developed in western Europe having hereditary political 
power. There are fourteen grades of rank. From the time 
of Peter special dignities have been conferred by special di- 
ploma making about one hundred counts, some fifteen princes 
and sundry barons. Titles are inherited equally by all the 
children. There is no primogeniture. Till the time of Alex- 
ander II the nobility enjoyed, in common with the merchants 
and clergy, the privileges of exemption from military con- 
scription, payment of poll taxes and corporal punishment. Of 
these the first has been taken away, and the others have 
ceased to be distinctions through the abolition of the poll tax 
and flogging. 

Prior to the emancipation act of February 19, 1861, the title 
to the lands of the empire was mainly in the nobility and the 
crown. There was assigned to each village a tract for the 
cultivation and use Of its inhabitants, but they were bound to 



RUSSIA 405 

work such portion of their time as the landlord exacted,— 
usually one half — on his estate without pay. The allowance 
of land to the peasant to cultivate for his own use was in 
effect but affording- him the means to live. All the benefit of 
his strength, in excess of that necessarily expended for his 
maintenance and the support of his family, went to the land- 
lord. The emancipation act of 1861, which applied only to 
the serfs of the nobility, was designed to allow them as their 
own the lands which had been assigned to them for their in- 
dividual support theretofore, but it is said that through defects 
in the practical execution oif it their holdings were in fact 
reduced, and thus, so far as land is concerned, they were 
rather impoverished. The act of 1866 emancipating the 
peasants on the crown estates was much more liberal and gave 
them twice as much as they had been allowed before. 

In Russia the usurer is an important factor, and the wide 
fluctuations in crop returns render the peasants peculiarly at 
his mercy. To pay taxes, if not merely to sustain life, they 
must frequently borrow, and to borrow is to invite ruin. Se- 
curity for small loans is frequently taken in the form of 
labor contracts to the neighboring landlord, from which the 
laborer finds it difficult to extricate himself. The liberation of 
the personal servants of the landlords at the time of the eman- 
cipation and the loss of their lands by misfortune or improvi- 
dence by peasants have produced a considerable class of land- 
Jess farm laborers, which seems to be steadily increasing. The 
peasant proprietors hold about twenty-seven per cent of the 
lands of the empire, though the peasants number more than 
three-fourths of the whole population and pay the great bulk 
of the taxes. The remainder is held by the landlords and the 
crown, and is cultivated largely by peasants under what are 
termed bondage contracts, contracts of service for advances 
made. But twenty-one per cent of the whole area of European 
Russia is cultivated. Serfdom did not extend over all Russia. 
Siberia, the country about the White Sea and the Cossacks off 
the south rejected it. The Tartars of the east, the Rouman- 
ians, the German colonists and the Finns, as a rule maintained 
their liberties. By the emancipation the serfs were not re- 



406 EVOLUTION OF GOVERNMENTS AND LAWS 

lieved entirely of the burdens of their landlords. The peas- 
ants, in lieu of their former services to the landlords, were 
bound to pay an annual tribute, varying in amount in differ- 
ent places according to circumstances. By a subsequent ar- 
rangement the state undertook to aid the peasants to redeem 
and discharge the perpetual rents for a lump sum, loaned to 
them by the state, thus releasing the peasants from all obliga- 
tion to the landlords and transferring the obligation to the 
state. 

The village system since the redemption is still maintained 
as before, and the lands still belong to the mir as a unit. 
Cities in Russia are of far less importance than in any other 
equally great country. The people are divided into two main 
classes, the merchants, who have a certain amount of capital 
and pay license dues in return for priviliges accorded them, 
and the mechanics and others of the humbler sort. The mer- 
chants are divided into three guilds ; the first pay five hundred 
roubles a year and have the privilege o'f trading throughout 
the empire and abroad; members of the second are limited 
to home trade, and the third are the small traders. Each 
guild has its board and elects its head. Prior to the emanci- 
pation merchants were prohibited from owning inhabited 
lands, i.e. estates with serfs. This restricted their holdings 
to city property. The restriction is now removed. 

A peculiarity of Russian society is the scarcity of profes- 
sional men. The medical profession languished mainly from 
want of schools. The legal profession had no standing, pro- 
cedure in the courts being secret and conducted by officers of 
the government. The reforms of Alexander II make the 
courts open to all classes equally, require trials to be public 
and allow parties to be heard in person and by attorney. This 
has given life to the profession o,i the lawyer. At so low an 
ebb was legal training, that it is said that a considerable num- 
ber of the judges of the courts of general jurisdiction had no 
previous training in the law. The leading peculiarities of 
Russian society are its division into two main classes, the 
peasants and the office-holding and land-owning nobility, and 
the meagre numbers and small importance of what in some 






RUSSIA 407 

other countries make up what is termed the middle class, but 
which in fact is morally and intellectually the highest. Russia 
is also peculiar in that the number of its landless and depend- 
ent class is smaller than in any other great country. 

The educational system is yet in its infancy and illiteracy is 
the rule all over Russia. This is not due to any disinclination 
to learn or want of capacity in the children. No where are 
more apt students to be found. At the great cities there are 
universities, which in many respects rank well with the best 
schools of Europe, but are afflicted with excessive govern- 
mental supervision. They are revolutionary hot beds, and 
rigid police supervision of the students is regarded as indis- 
pensable. The natural spirit of the students induces them to 
revolt against this intenference, and riots are not infrequent. 
The government has the impossible task of giving a liberal 
education to the youths and still retaining respect for despot- 
ism. Scattered through the provinces are high schools, at 
which instruction in the dead languages is given along with 
other branches. Primary schools are yet more numerous, but 
hardly one-tenth of the children are as yet afforded even the 
rudiments of education. Only about one-ninetieth of the 
revenues raised from the people is applied to schools. The 
army, navy and public officials absorb the lion's share. To the 
means furnished the schools by the government must be ad- 
ded about as much more raised by the zemstvos, besides that 
paid for private instruction. The people everywhere show 
great interest in obtaining the benefit of schools, and the peas- 
ants especially exhibit much liberality in taxing themselves to 
establish them. 

Railroads and telegraphs are mainly in the hands of the 
government, and a system of banks is also maintained. Manu- 
facturing industries are still in a very backward state. 

In religion most of the Russians adhere to the Greek Church. 
The clergy, who are dependent on the Czar for their positions, 
have for centuries been the mainstay of his authority. Over 
an illiterate and devout people they exercise a most powerful 
influence, and the duty of submission to the Czar's authority 
is constantly inculcated by every priest in the land. Perhaps 



408 EVOLUTION OF GOVERNMENTS AND' LAWS 

no other people in the world are so thoroughly loyal to their 
chief ruler as they, and this is largely due to the influence of 
the clergy. 

In its governmental system Russia seeks to administer the 
affairs of its vast empire from a single head. Its territory is 
not divided into either tributary or self-governing dependen- 
cies, but is a compact and largely homogeneous state. The 
central power connects itself directly with each part down to 
the peasant village. It allows and in fact derives great ad- 
vantage from the democratic mirs, which in effect reduce the 
number of units with which it has to deal from that of the 
individuals to that of the mirs or volosts. Local selif-govern- 
ment over limited areas aids autocracy. The force of the 
volost, made up of unlettered peasants, is insufficient to en- 
danger or interfere with the central authority. The recently 
established zemstvos, if permitted to consult and combine with 
one another, might check arbitrary power, but such combina- 
tions are jealously prohibited, and the zemstvo is not sustained 
or invigorated by that inherited strength, which the primitive 
village has brought down from antiquity. Its powers are 
more strictly limited and its functions not generally 
comprehended. 

The system of laws which prevails exhibits peculiarities 
clue to the manner of its development. Although it cannot 
be said that all its laws are an indigenous growth, and that 
none have been borrowed from other nations, the system is 
distinctly Russian. It is in main a product of local customs, 
peculiar to Russia, which furnish the laws of the peasant 
communities, and of edicts of the Czars. There never has 
been an adoption of the legal system of any other state or 
people. From time to time the Czar has issued his ukase, 
covering any subject he had in mind in his own way, without 
regard to anything which his predecessors had done. Russian 
Czars have frequently been bold innovators. As a reformer 
the Czar has ideal conditions for action. He makes the law 
as he wills. The emperors have for many generations realized 
the necessity of governing in accordance with declared prin- 
ciples, but they have been unwilling to part with their judicial 



RUSSIA 409 

power, or speaking more accurately, with the power to set 
aside and disregard their own rules wherever deemed ex- 
pedient. The laws therefore have been only for the guidance 
of subordinates, and then only so far as seemed consistent 
with the policy of the bureaucracy. There have been various 
compilations of the laws of the empire, beginning with that o/f 
Iaroslav in the tenth century and ending with that of Speran- 
sky in the reign of Nicholas I. This last compilation fills 
forty-five quarto volumes, containing the laws of the empire 
arranged in chronological order. These laws have been con- 
densed into a code, Svod, classified by subjects, and included 
in fifteen volumes, containing over sixty thousand articles in 
fifteen hundred chapters. This vast mass of legislation would 
seem to be sufficient to afford fixed rules for most cases, but as 
a matter of fact there is much contradiction and inconsistency 
in the ukases of the various Czars, issued at different times 
and acting under varying impulses. To the subject these laws 
have afforded no safe rule of conduct or protection olf prop- 
erty rights, because of the system of administration. Trials 
in the courts of both civil and criminal causes until 1864 were 
secret, the evidence being taken down in writing. A system 
of appeals from one court to another has long prevailed, but 
this adds little to the suitor's security and causes much delay 
and expense. Lawyers were not advocates but merely inter- 
cessors with the judges. That best of all guarantees for the 
integrity of judges, trials in the presence of the public and 
of the professional lawyers, whose business it is to extract the 
truth from parties and witnesses and apply the law to the 
facts, was not given, till the relforms of Alexander II. While 
long steps in the right direction have been made in the refor- 
mation of the judiciary, there is still much to be desired in 
the way of independence and fearlessness on the bench. This 
may be said with truth of every other land, as well as Russia. 
There it is the Ministers whose influence is regarded as most 
baneful, elsewhere it is mainly the rich and powerful. The 
principal complaints urged against the Russian system are 
for arbitrary arrests and punishments ; lack of security for the 
citizen against the malice of police officers ; cruelty and bru- 



410 EVOLUTION OF GOVERNMENTS AND LAWS 

tality in the manner of executing sentences; insecurity in the 
home against searches, seizures and arrests, and police inter- 
ference with the private life olf the citizen. To this is added 
a charge of general and all pervading corruption among 
public officials, courts, police officers, governors and even min- 
isters. Just how far this sweeping charge is justified by the 
facts it is impossible to state, but the want of that effective 
check, accountability to the people for whom and on whom 
authority is exercised, renders it probably true that the charge 
is well sustained. The Czar and the ministers seek to keep 
informed of all that is doing through the secret police and 
spies, but of the integrity of these they have no better guar- 
anty than of the officials they are sent to watch. The funda- 
mental difficulty, which no autocratic government has ever 
permanently overcome, is that the number of matters to be 
investigated is too great and the scene of action is too far 
away for any set of men at the capital to be able to learn the 
facts and act intelligently on them. To conduct the affairs of 
so vast an empire safely and intelligently much must be re- 
ferred to the people of each district, who alone can be relied 
on to bring to account their local oppressors or incompetent 
public servants. With every step forward in civilization an 
accession of mental and moral force in the governing head is 
required, which no one man or small clique of men can pos- 
sibly furnish. The knowledge, virtue and power of the great 
multitude must be drawn from in order to move (forward 
safely and rapidly. The purest and best part of the admin- 
istration of Russian affairs will generally be found to be that 
under the immediate supervision of the Czar himself and that 
directly managed by the people in their local concerns. 

On March 15, 1917- the Czar abdicated and the Romanof 
dynasty, under which the boundaries of the empire had been 
extended over all eastern Europe and northern Asia, came to 
an end after three centuries of power. As the war progressed 
and the fundamental issue between the parties became more 
clearly defined the incongruity in the alliance of autocratic 
Russia with democratic France, Great Britain and Italy, for 



RUSSIA 411 

the overthrow of militarism in Germany became more and 
more apparent. The Russian autocracy was in theory a more 
absolute military despotism than that of the Kaiser. The war 
demonstrated its lack of efficiency. The ideals of the ministry 
and their subalterns were essentially the same as those of the 
military nobility of Prussia. But at the base of the govern- 
mental system were the democratic mirs, the artels and other 
associations of the proletariat, filled with longings for liberty 
in an unalloyed democracy. A little progress had been made 
in the construction of a representative government through the 
semstvos and the Duma, but the vast illiterate multitude knew 
almost nothing concerning the principles of organization which 
are essential to the security, welfare and efficiency of a great 
democratic nation. The number of educated people of mod- 
erate means was relatively much less than in the western na- 
tions. The proletariat were distrustful of the bourgeoisie as 
well as of the ruling classes. The war stimulated the activities 
and increased the importance of the zenistvos, through which 
a large part of the supplies of food, clothing and munitions 
were furnished the soldiers. The inefficiency of the ministry 
became more and more apparent as the strain of the struggle 
increased. The Germans had been seeking a separate peace 
with Russia, and Boris Sturmer, who was both Premier and 
Minister of Foreign Affairs, was charged with German affilia- 
tions. The hostility of the Duma caused him to resign on 
November 24th, 1916, and Mr. Alexander Trepoff was ap- 
pointed as his successor. On December 15th the Duma unan- 
imously voted to entertain no peace proposals. The Czarina 
was of German birth and regarded as strongly pro-German in 
her sympathies. She fell under the influence of the monkish 
impostor, Rasputin, to whose supernatural aid she attributed 
the improved health of her son. The murder of Rasputin on 
January 29, 191 7, was followed by the dismissal of Trepoff 
and the other liberal ministers, who showed no disposition to 
punish the slayers of Rasputin, and the appointment of Prince 
Golitzin, a reactionary, opposed to all the reforms demanded 
by the liberals, as Premier, and a cabinet in accord with him. 
The Duma continued to manifest a disposition to exercise 



412 EVOLUTION OF GOVERNMENTS AND LAWS 

legislative functions, and in March the Czar ordered it dis- 
solved. The Duma refused to be dissolved, procured the ab- 
dication of the Czar, took charge of the government and 
named a council of ministers to conduct it. The people both 
in and out of the army were ready for the revolution, and 
there was surprisingly little resistance to the Provisional Gov- 
ernment. The workingmen's organizations and most of the 
soldiers supported the Duma, and the complete overthrow of 
the autocracy was accomplished with very little bloodshed. 
The Provisional Government was recognized by the United 
States on March 22 and by Great Britain, France and Italy 
on March 23. 

But while there was such an overwhelming majority of 
the people in favor of the overthrow of the old government, 
there was no such majority in favor of the new. The Council 
of Workmen's and Soldiers' Delegates, though not representa- 
tive of the whole nation, was the most potent organization 
existing among the multitude. It at first gave its support to 
the new Ministry, but the ideals of the great multitude were 
opposed to a ruling force, and soldiers and workmen sought 
an immediate realization of their hopes and purposes through 
excessive wages and a division of the land. In the first days 
of the revolution a considerable number of army officers were 
killed by the men under them, and discipline was destroyed. 
The leaders labored earnestly to construct a Cabinet that would 
command the confidence of all classes and made frequent 
changes with that end in view. Alexander F. Kerensky, a 
socialist who believed in law and order and the vigorous pros- 
ecution of the war, came rapidly to the front and appeared 
to have the confidence of all classes. In the last days of July 
he succeeded Premier LvofI, and a new government was 
formed with a Cabinet of ten Ministers, five of whom were 
socialists. Kerensky retained the portfolios of War and Ma- 
rine. The Council of Soldiers', Workmen's and Peasants' 
Delegates of all Russia passed by a large majority resolutions 
supporting this Provisional Government and according it un- 
limited powers for reestablishing the organization and dis- 
cipline of the Army and issued a vigorous proclamation urging 



RUSSIA 413 

all to support it. Confidence in the new government was 
short-lived. Discipline and efficiency could not be at once re- 
stored to an army poorly supplied with food, munitions and 
equipment. The Germans took Riga and overran Oesel Island. 
The Bolsheviki, extreme socialists, under the leadership of 
Nikolai Lenin and Leon Trotzky took advantage of the de- 
pression resulting from the defeat of the army to propagate 
their doctrines and press their demands for an immediate peace. 
On November 7, 191 7, the Bolsheviki, backed by the gar- 
rison of Petrograd, overthrew the Provisional Government. 
The Military Revolutionary Committee of the Petrograd 
Council of Workmen's and Soldiers' Delegates announced as 
their program ; 

"1. The offer of an immediate democratic peace. 

"2. The immediate handing over of large proprietary lands 

to the peasants. 
"3. The transmission of all authority to the Council of 

Soldiers' and Workmen's Delegates. 
"4. The honest convocation oT a Constituent Assembly." 

The German government promptly took advantage of this 
announcement and proposed peace negotiations. Hostilities 
were suspended on December 7, and an armistice announced 
on December 16, between the Central Powers and Russia. 

Disintegration of the great Russian Empire set in and pro- 
gressed rapidly. Finland, which had always been restless 
under the Russian yoke, asserted its independence, and the 
Ukranian People's Republic concluded a separate peace on 
February 9, 1918. The Bolshevik Government, dissatisfied 
with the terms imposed by the Central Powers, announced its 
refusal to sign the treaty and its withdrawal from the war. 
By the same document the demobilization of the Russian troops 
on all fronts was ordered. But the Germans would not accept 
this declaration as an end of the war. Their armies continued 
to advance and the Bolsheviki yielded and signed the treaty 
which in effect transfers Poland, Courtland, Esthonia and 
Lithuania to Germany and recognizes the Ukraine as a separate 
nation. Since the conclusion of this treaty there have been 



414 EVOLUTION OF GOVERNMENTS AND LAWS 

several attempts at counter revolution and the establishment 
of local governments differently constituted. No organization 
is recognized as having authority over all or nearly all the 
territory formerly included in the Russian Empire. Under the 
leadership of Lenin and Trotzky the Soviet Government has 
been established and with the support of the Red Army has 
maintained rulership over most of Russia. A police and spy 
system similar in its workings to the old system of the Czars 
has been established and has been quite as ruthless in its meth- 
ods as the old one. It has been used for the circulation of 
propaganda designed to create sentiment in favor of the Soviet 
system. The struggle for mastery between the leaders of count- 
er revolutions and the Soviet leaders has ceased for a time, if 
not permanently, with the Soviet organization still in control. 
Fear of a return to the autocracy and jealousy of foreign in- 
terference have been skilfully turned to their advantage by the 
Soviet leaders. The stratification of society has also been fav- 
orable to the dominance of their form of organization. The 
Czar and his family were ruthlessly murdered on July 17, 
1 918, at the Ural town of Ekaterinburg, to which they had 
been removed, and most of those who constituted the ruling 
class under him were either killed or driven out of the country 
soon after the overthrow of the Provisional Government. 
The bourgeoisie, who in more advanced nations constitute the 
ruling force, were too few in numbers and wanting in or- 
ganization to be able to materially influence political affairs. 
The peasants, though greatly outnumbering all other social 
elements, were too ignorant and wanting in capacity for or- 
ganization to assume mastery of the nation. The organizations 
of the laboring men in the great cities and of the soldiers were 
far more numerous and complete than those of any other social 
elements. Lenin and his co-workers made skillful use of them 
and established their leadership. They have undertaken to 
work out a complete socialistic organization of the state. 
They have been quite as bitterly opposed to all capitalistic 
domination as to the political rulership of the Czar. They 
have sought to put an end to all capitalism, all exploitation of 
labor either through money, credit, ownership of land, fac- 



RUSSIA 415 

tories, railroads or other means of production or distribution 
of wealth. Their method has been the simple and direct one 
of governmental seizure of all forms of property. The results 
have been temporary advantage to those who have done the 
seizing, followed by paralysis of the industries resulting from 
lack of competent management and the supplies that are essen- 
tial in all industrial operations. Seizure of the crops of the 
peasants for the use of the Soviets and their army has dis- 
couraged the production of food. In a vain attempt to supply 
the place of the products resulting from useful activities the 
government has resorted to the familiar expedient of paper 
money, issued in unlimited quantities, with the inevitable re- 
sult that it is now almost worthless. The denial of all ad- 
vantage to capital and capitalists destroys the credit system. 
The theory that the laborer is entitled to the whole product 
of his labor has a charm that appeals to the mere wage earner. 
He often fails to fairly comprehend the necessity for saving 
and applying a part of the proceeds of the business to the con- 
struction and repairing of buildings and machinery, the pur- 
chase of raw materials, fuel and supplies, or of establishing 
credit to tide over adverse business conditions or unexpected 
losses. Until educated to a full comprehension of these needs 
the laborer's desire for his full share of the gross product of 
the industry dominates. The distrust of capitalistic owners, 
who have heretofore not merely accumulated the needed funds 
for the transaction of their business, but have lived in com- 
parative luxury, has caused deep seated antagonism to them 
and their system. The money lender, who lives on usury and 
without work, appears yet more objectionable. All who lend 
surplus means are rated as usurers, even though they in fact 
do more than their share of useful work. Actuated by such 
considerations, the leaders have attempted the complete na- 
tionalization of all industries and property. Reliable data are 
not yet available for a detailed statement of the steps taken to 
this end or of their effects, but there can be no doubt that 
many of the manufacturing plants have gone to decay and 
wholly or partially ceased to give employment to the workers. 
Peasants whose lands and crops have been seized have curtailed 



4i6 EVOLUTION OF GOVERNMENTS AND LAWS 

the production of crops, and want and famine have followed. 
Instead of being the granary from which industrial Europe is 
fed, Russia is short of food for its own people. The prevailing 
famine is due in large part to the great drouth of 1921, but 
with normal planting and cultivation and normal facilities for 
transportation and distribution the want and suffering could 
have been greatly reduced. With railroad tracks, engines and 
cars out of repair and no funds available to restore them it is 
impossible to move supplies from distant places of production 
to the famine stricken districts. With the repudiation of the 
national debt national credit is destroyed, and with the aboli- 
tion of private property the basis of private credit is taken 
away. Without security or interest there is no inducement 
for those who have money, food or clothing to furnish it to a 
borrower or a purchaser. Present inability to pay cannot claim 
the aid of credit till a return of prosperity, unless the borrower 
recognizes his obligation to pay and is given a chance to accu- 
mulate the means to do so. The farmer or craftsman cannot 
provide for the future needs of himself and others, when the 
government seizes his product for the use of those exercising 
authority and the army that maintains them in power. The 
socialism of the Soviets has been followed by results in marked 
contrast to that of the Incas of Peru, which caused the ac- 
cumulation of such ample supplies of all necessaries. The 
fallacy of the present Russian system is that instead of being 
designed to increase the sum total of useful things for dis- 
tribution among the people, it diminishes production by taking 
away the incentives to private effort, destroys credit and con- 
fidence and discourages private initiative. 

To repair the waste of war and the wrecked industries of 
the country the leaders are now seeking to restore foreign 
trade and to procure foreign loans. Of the leading nations 
Germany is the only one that has fully recognized the Soviet 
Government. Great Britain has given it a partial recognition 
by a trade agreement signed in London on. March 16, 1921. 
The parties to this treaty are the Government of the United 
Kingdom and the "Russian Socialist Federal Soviet Republic, 
hereinafter referred to as the Russian Soviet Government." 



RUSSIA 417 

Article XI contains the following* recognition of property 
rights : 

"XI. — Merchandise, the produce or manufacture of one coun- 
try imported into the other in pursuance of this agreement, 
shall not be subjected therein to compulsory requisition on the 
part of the Government or of any local authority." 

Perhaps the most important part of the whole treaty is that 
contained in the part appended after the signatures to the body 
of it, reading as follows : 

"At the moment of signature of the preceding Trade Agree- 
ment both parties declare that all claims of either party or of 
its nationals against the other party in respect of property or 
rights or in respect of obligations incurred by the existing or 
former Governments of either country shall be equitably dealt 
with in the formal general Peace Treaty referred to in the 
preamble. 

In the mean time, and without prejudice to the generality of 
the above stipulation, the Russian Soviet Government declares 
that it recognizes in principle that' it is liable to pay compen- 
sation to private persons who have supplied goods or services 
to Russia for which they have not been paid. The detailed 
mode of discharging this liability shall be regulated by the 
Treaty referred to in the preamble." 1 

These provisions are very guarded recognitions of rights 
to private property and obligations to pay debts. 

At the Genoa Conference the Soviet Government was again 
confronted with the inconsistency of its position in refusing to 
recognize the validity of prior debts and obligations when ask- 
ing a loan of money from creditors holding past obligations 
which it repudiated. 

Authorities 
Rambaud : History of Russia. 
Beaulieu : The empire of the Tzars. 
Stepniak : Russia under the Tzars. 
Stepniak : The Russian Peasantry. 
Encyclopaedia Britannica. 

1 Current History XIV No. 2. 257. 



CHAPTER XVII 



Italy 1 



Were it not for the fact that the city of Rome is included 
within its boundaries and is now its capital, there would ap- 
pear little connection between modern Italy and ancient Rome. 
The boundaries of the present kingdom, though clearly marked 
by nature, were never oif importance to Rome. Her policy 
and system both under the republic and empire applied equally 
to more distant lands. As a political unit Italy has no history 
till within the last half century. After the fall of the western 
empire came the Goths and established a kingdom over the 
peninsula, nominally under commission from the eastern Em- 
peror, but really with little recognition of his authority. Then 
followed the effort of Justinian to reestablish the Byzantine 
rule and the appointment of an exarch at Ravenna to rule as 
his representative. Then came the invasion of the Lombards, 
also a German race. They came not merely as an invading 
army but as a moving nation with wives, children and all 
their chattels, occupied the valley of the Po and moved slowly 
clown along the interior of the peninsula, leaving Venice, 
Ravenna, Rome and other portions untouched. From their 
advent till modern times the sovereignty over Italy was di- 
vided. The temporal power of the popes, like that of feudal 
lords in later times, had if or its foundation a recognized owner- 
ship of land. By various means the Roman pontiff acquired 
large possessions in and about Rome, over which he assumed 
civil authority. Under Gregory I (590 to 604) these posses- 
sions were largely increased. In 754 the Frankish king Pepin, 
having taken up the quarrel of the Pope with the Lombards 
and defeated them, handed over to Pope Stephen III a con- 

1 For Mediaeval events in see ch. XV. For a full account of the legisla- 
tion of the Goths, Burgundians, Lombards and Franks see Calisse's History 
of Italian Law, Continental Legal History Series, Vol. 1. 

418 



ITALY 419 

siderable district including Ravenna and Pentapolis, "to be 
held and enjoyed by the pontiffs of the Apostolic See forever." 
This was followed in 800 by the alliance of Pope Leo III 
with Charlemagne, by which the latter received the imperial 
crown from the former and in return recognized the spiritual 
supremacy of the Pope throughout Christendom. The south- 
ern portion of the peninsula did not submit to Charlemagne, 
but recognized the ultimate sovereignty of the emperor at 
Constantinople. After the Frankish empire fell into decay 
there followed a period oif discord and lack of central author- 
ity, though there was a titular king of Italy, who waged war 
on the local nobility to enforce his authority with varying 
success. In 961 the German emperor Otto entered Lombardy 
and in the next year was crowned emperor by the Pope at 
Rome. The dominion of Otto and succeeding German em- 
perors was never fully recognized throughout Italy, and wars 
frequently occurred in efforts to enforce their authority. Then 
came the war of the investitures, which was a struggle for 
actual power between the Pope and the Emperor. Following 
this conflict, though it may not be safe to say as a result of it, 
came the age of free cities. The feudal system was intro- 
duced into Italy and was enforced in rural communities, but 
the towns adopted popular systems and asserted their inde- 
pendence. The history oif these petty states affords a most 
valuable lesson in the subject of our study. Their develop- 
ment was along similar lines with substantially similar results. 
At first a comparatively few people joined together for mutual 
aid and protection. The system of municipal government at 
first adopted was popular in character and design to protect 
the more humble citizens against aggression. The tyrant most 
dreaded was usually a feudal lord, against whom the burghers 
united. Joining for defense against the exactions of rapacious 
nobles, they were disposed to accord justice to each other. 
This necessarily implies consideration for the rights of the 
humble. With superior moral principles as the basis of their 
institutions they naturally drew strength and gained numbers 
from among those who could escape from the dominions of 
oppressive nobles. With Ifreedom of action accorded to each 



4 2o EVOLUTION OF GOVERNMENTS AND LAWS 

citizen and protection to all these little republics exhibited a 
degree of activity and force far exceeding that to be found 
among people ruled by petty despots, and the development of 
industries and trade went forward at a remarkable pace. 
Though the free cities succeeded in combining against com- 
mon enemies at times, they soon manifested jealousies and 
hostility toward each other. Like the ancient Greeks they 
lacked capacity for combining for common ends, and went to 
war instead. In their several internal organizations demo- 
cratic systems were gradually converted into oligarchical ones 
and these generally, perhaps universally, divided into warring 
factions, which were only subdued by a despot, usually from 
without the particular city. Thus it will be observed that 
these republics began with relatively good principles and ex- 
ceptional prosperity and ended in disaster and tyranny. The 
question naturally forces itself on us, if the early system is 
the better, why is it invariably ifollowed by that which is 
worse ? Why does the good perish and the bad take its place ? 
The answer must be that the early system contained the 
germs of its own destruction, and that these germs grew and 
gained strength at the expense and ultimately to the exclusion 
of the salutary principles which were dominant in the early 
organization. 

Everywhere it will be found that the power of a ruling 
oligarchy has developed in connection with the theory of the 
transmission of property by inheritance. Probably the reason 
why the effects of laws of inheritance in developing a distinct 
class are not readily perceived is, that estates pass from father 
to son, one at a time, so that there is no time when there is a 
noticeable change in the personnel of the oligarchy. Where 
all start poor and on a substantially equal footing, difference 
in capacity, strength, prudence and other circumstances, re- 
sults in the accumulation by some of more property than the 
rest. Perhaps no social or political distinction results from 
this difference. The feeling df fellowship between the richest 
and poorest may continue through life. But at the death of 
the wealthy one the estate passes by inheritance to a son who 
has done nothing to merit it. He takes it with a feeling of 



ITALY 421 

pride and superiority over the sons of the poor. If possessed 
of the requisite qualities the inheritance he has received adds 
to his power to acquire wealth, and he increases his holdings. 
His riches give him distinction and naturally mark him as a 
public man. He is placed in authority more or less of the 
time. At his death an increased estate passes to his heir. By 
this time the bond of sympathy between rich and poor is 
broken. The son, whose ancestors for two or more genera- 
tions have enjoyed wealth and exercised power, believes him- 
self to be of a superior class. He associates only with those 
of similar fortune and looks with contempt on the poor. 
Starting with an utterly ifalse estimate of his own deserts, he 
regards the possession of property through a law which is 
merely a human regulation, as due to the special grace of a 
higher power and himself marked out as superior to the multi- 
tude. Discarding utterly the doctrine that individual merit 
and desert rest solely on individual conduct and effort, he 
makes a virtue of idleness and takes the fruits of the labors 
of others without suspecting that justice would deny him any 
share of that for which he returns nothing in exchange. 
Naturally the heirs of wealth associate mainly with those of 
their class, and by intermarriages wealth is consolidated and 
the interests of families are combined. The history of all 
the Italian cities shows that through exactly this process an 
oligarchy was established, based on possessions. Then came 
jealousies, rivalries and factions. While the poor may at 
times raise riots when bread is scarce, the idle rich spend 
their time in plotting to gain still greater prominence and 
ascendency. Having plenty they covet still more and incite 
the poor, who are dependent on them, to fight in their interests. 
The landed aristocrats of Italy, like those of other parts of 
Europe in feudal times, based their rights on grants from the 
king or emperor. His right to make such grants generally 
had its foundation in military power and conquest. The shift- 
ing fortunes of the rulers of different states placed it in the 
power of some one of them at some time to regard each tract 
of land as conquered territory to be given to his favorite fol- 
lowers, and as to many parts there were many changes of 
sovereignty. 



422 EVOLUTION OF GOVERNMENTS AND LAWS 

Though the soil of Italy became a bone of contention among 
foreign and domestic princes and for 1400 years was without 
national unity, its people still held a commanding position in 
many respects. The church passed from being an organiza- 
tion to propagate religious faith and moral principles to one 
whose main aim was power and mastery. The weapons of 
the church were not merely interdicts and excommunications, 
but the Popes did not hesitate to equip armies and fight bloody 
battles. Through the theory of land titles the churches and 
monastic societies became possessed of a large proportion of 
all the best lands in Europe. To the revenue derived from 
these was added a great variety of contributions from all 
classes of people for supposed services, in the collection of 
which the priesthood became very expert. Schemes to gather 
money were never wanting, and the sale of indulgences and 
the confiscations of the Inquisition show to what depths of 
iniquity the professed heads of the Christian religion could 
descend. Most of the people of Italy have been poor, igno- 
rant and sorely oppressed during most of the time since the 
fall of the western empire, yet there have always been bright 
spots somewhere. The ancient spirit of liberty and law has 
always lived in the breasts of some of the sons of the penin- 
sula, and from time to time has found expression in the in- 
stitutions of her cities. The learning and arts of the Greeks 
and Romans have never been entirely lost. Ravenna, Venice, 
Milan, Genoa, Naples, Florence, Pisa, Verona, Mantua, Bo- 
logna, Parma, Pavia, Siena and scores of other cities, includ- 
ing old Rome itself, have at times exhibited regard ifor justice 
and the blessings of peaceful industry and beneficial enter- 
prise. Not their wealth, hut their inability to make wise and 
just disposition and distribution of it and their jealousy of 
rivals have proved their ruin. The church lost its hold on the 
consciences of men when its main aims became the gathering 
of wealth and the increase of power. Though the Italian 
cities severally were able to accomplish brilliant results, the 
ancient capacity for organization, which characterized Rome, 
was lacking. Confederacies like that of the Lombard cities 
might successfully resist a foreign aggressor for a time, but 



ITALY 423 

no system was developed which effectually provided either for 
continued cooperation against outside /foes or for the determi- 
nation of controversies between the different cities and their 
citizens arising from conflicting interests. Faction soon be- 
came strife, and the utterly senseless quarrels of Guelphs and 
Ghibellines covered the streets of the cities with the blood of 
rival parties and armed city against city and state against 
state. Conflicting claims of Pope and Emperor to power ad- 
ded to the turmoil and intensified the hatred of factions. Fac- 
tional strife as usual resulted in the evolution of tyrants, from 
whom the people hoped at least for order. Then came the age 
of mercenary soldiers hired by petty tyrants to fight their 
wars, of intrigue and deception, ifor which the statesmen of 
the Italian states gained unenviable notoriety. 

The fifteenth century found Italy divided into five states, 
the kingdom of Naples, the duchy of Milan, the Popes domin- 
ions, and the republics of Venice and Florence. The last 
named cities held high rank in commerce and domestic indus- 
tries. This was a period of power 'for the Pope and of Vene- 
tian dominance on the sea. Then followed that struggle for 
dominion in Italy between the kings of Austria, France and 
Spain, with its varying combinations, always resulting in the 
domination of foreign rulers over more or less of the country, 
which lasted till recent times. Local dukes and princes were 
for the most part dependents on the rulers of one or another of 
these great kingdoms. 

Italy became the field of contest between Republican France 
and despotic Austria in 1796, and as a result of Napoleon's 
successes temporary republics were established. Later Napo- 
leon established his authority and ruled through his representa- 
tives, but the congress of Vienna in 181 5 undid all his work 
and again divided Italy into petty states. 

Victor Emanuel, whose ancestors had enjoyed more or less 
power in Savoy, Burgundy and Lombardy from the tenth 
century, was accorded the kingdom of Sardinia, including 
Piedmont and Genoa. Austria held Venice and Milan, the 
Pope the states of the church, and the Bourbon prince Ferdi- 
nand Naples and Sicily. Austrian influence dominated, and 



424 EVOLUTION OF GOVERNMENTS AND LAWS 

despotism in all its odiousness returned. In 1820 revolts oc- 
curred, which were soon suppressed by the combined forces of 
Austria, Great Britain and Bourbon France. Trials of leaders 
and persons obnoxious to the rulers by courts organized to 
convict followed, and the hand of despotism put many patri- 
ots to death as traitors. In 1830, following the uprising in 
Paris, there were outbreaks in some of the cities, which were 
soon suppressed. The desire for Italian unity and 'freedom 
spread not less rapidly for the iron rule of the princes. The 
advocates of a republic, though forced to act in secrecy, con- 
tinued their agitation and contrived to hold meetings ostensi- 
bly for other purposes. The scientific congress professing to 
be devoted to scientific research was in fact a cover for re- 
publican gatherings. On the accession of Pius IX to the 
papacy he proclaimed a general amnesty for political offenses 
and sided with the liberals. In 1847 constitutions were 
granted in Rome, Piedmont and Tuscany. Austria and Naples 
refused to make concessions, and in 1848 a demonstration at 
Milan by the liberals was made the occasion of the slaughter 
of many citizens in the streets. Uprisings at Naples forced 
the allowance off a constitution in 1848. In response to the 
popular demand the king of Sardinia made war for the libera- 
tion of the Austrian provinces, but without success. Opposi- 
tion to the war by the Pope caused an uprising at Rome, 
which resulted in the temporary establishment of a republic. 
The Pope was resorted to power by the French in 1849. The 
dukes of Parma, Modena and Tuscany, who had been scared 
from their dominions, returned under Austrian protection, 
and the old order of things was restored. In 1859 France 
came to the aid of Sardinia, and as a result of a brief cam- 
paign Sardinia gained Tuscany, Modena and Prama, but at the 
price of the concession to France of Savoy and Nice. This 
was soon followed by a revolution in the south of Italy. Un- 
der the lead of Garibaldi Sicily was soon overrun, and cross- 
ing to the main land Naples was taken. In 1861 this kingdom 
voted to be annexed to that of Sardinia, and Victor Emanuel 
was proclaimed King of Italy. As a result of the Austro- 
Prussian war, in which the Italians took part with the Prus- 



ITALY 425 

sians, Venice was restored to Italy. The French revolution of 
1870 resulted in the withdrawal of French support from the 
Pope, and on the twentieth of September 1870 Victor Emanuel 
entered Rome and made it his capital, the Pope retaining the 
Vatican with its dependencies. In these recent wars for the 
liberation of Italy the republicans have been the popular lead- 
ers, and republican enthusiasm has given the energy which has 
resulted in the establishment of the present limited monarchy. 
The constitution is essentially that granted by Charles Albert. 
The crown is hereditary in the male line of the house of Savoy. 
Legislative power is in the king and parliament, and the king 
on his accession is bound to take an oath in the presence of 
both chambers, that he will obey the constitution. His style 
is "by God's grace and through the will of the nation King of 
Italy" : thus recognizing the concurrence of divine and popu- 
lar will. The executive powers of government are exercised 
through a ministry responsible to parliament, composed of 
nine members namely, Foreign Affairs; Interior; Public In- 
struction; Finance; War; Marine; Grace; Justice and Wor- 
ship ; Public Works ; and Agriculture, Industry and Commerce : 
The Senate consists of the princes of the royal family and an 
undefined number of persons forty years of age or over, ap- 
pointed by the king from the archbishops, bishops, ministers, 
high officials, admirals, generals and other persons of wealth 
or distinction. There must be an election of members of the 
chamber of deputies at least once in five years. All males 
twenty-one years of age or over, who pay taxes to the amount 
of twenty lire and can read and write, are allowed to vote. 
There are 508 members of the chamber oif deputies. In 1865 
the whole kingdom was divided into sixty-nine provinces and 
eight thousand five hundred and forty-five communes, but 
many changes have been subsequently made in the arrange- 
ment. In each province there is a prefect appointed by the 
king and a council chosen by the same electors, which elects its 
own president and has supervision of provincial affairs. In 
each commune there is also a council having- charge of the local 
affairs with power of local taxation. The Italian government 
is still essentially aristocratic, but the difficulties with which 



426 EVOLUTION OF GOVERNMENTS AND LAWS 

Italian statesmen have been confronted were very great. No 
other country included so large a percentage of beggars and 
idle poor. Brigandage and lawlessness, extreme ignorance, 
religious bigotry and general incapacity for public affairs, 
prevailed in many localities. Though Italian cities are still 
seats of learning and culture and the homes of men of a very 
high order of intelligence, morals and education, Rome, 
Naples and other cities contain great masses of depraved men 
and women, from whom little that is good need be hoped ifor 
at once. 

In the matter of education though the government exhibits 
most commendable solicitude, Italy is still far behind most 
European states. Each commune is bound by law to afford 
primary education and attendance is made compulsory, but 
there are still very many places where schools are not main- 
tained for all, and many children who do not attend. There 
are seventeen national universities and numerous special 
schools of high order. The judicial system has at its head 
five courts of cassation, at Rome, Turin, Florence, Naples and 
Palermo. Below these are twenty-three courts of appeals in 
the principal cities. The number of courts of assize varies at 
the pleasure of the king. Trials of criminal cases are by 
jury, and the death penalty is no longer inflicted. There are 
one hundred and sixty-two civil and correctional tribunals, 
and 1813 praetors having jurisdiction in civil causes involving 
less than 1500 lire and also in criminal cases. It is a part of 
their duty to effect compromises of litigation without trial. 
There are also special judges, styled conciliatori, to aid in 
bringing about settlements, and about one-fourth the causes 
are said to be disposed of in this manner. The principles olf 
the Roman law still afford the basis of the modern system of 
Italy, though changed in many particulars. 



CHAPTER XVIII 



Spain and Portugal 



Of the habits and organization of the people of Spain at the 
time it first became known to the Greeks and Phoenicians or" 
later to the Romans we know very little. They are mentioned 
as barbarous tribes. The Phoenicians were the first to make 
settlements and establish trading ports on the coast. Gades, 
Tartessus and Tarraco are said to have been flourishing towns 
as early as the seventh century B. C. Carthage, itself a Phoeni- 
cian colony, had acquired a kind of dominion over the penin- 
sula by the time of the first Punic war, 264 B.C., but had not 
succeeded in establishing a settled government over the interior 
tribes. Considerable progress was made by Hamilcar and 
Hasdrubal in extending their rule over the peninsula prior to 
the second Punic war, but, beyond the facts that they were 
backed by strong armies and at the same time encouraged 
matrimonial unions between their followers and the natives, 
little can be told of the system by which they governed. Dur- 
ing this war the Romans invaded Spain, and by 205 B.C. they 
had taken the mastery of the country out of the hands of the 
Carthaginians. The process oif planting Roman colonies and 
introducing the Roman system met with much resistance from 
the interior tribes, and it was not till the time of Augustus 
that the whole peninsula to the Pyrenees became pacified. 
The Roman system then became general, and under it Spain 
enjoyed a marked degree of prosperity and exemption from 
war for nearly three hundred years, though sorely oppressed 
by the tax gatherers. 

Under Augustus Spain was divided into three provinces, 
Boetica in the southeast with Corduba for its capital, Lusi- 
tania, corresponding to modern Portugal, of which Emerita 
Augusta was the capital, and Tarraconensis, covering all the 
remainder, with Tarraco for its capital. Of these Boetica, 

427 



428 EVOLUTION OF GOVERNMENTS AND LAWS 

the most orderly and thoroughly Romanized, was a senate 
province, and the other two were imperial provinces, of which 
the Emperor named the governors. The whole peninsula was 
divided into fourteen conventus, each made up of a combi- 
nation of communities within the district, and having a chief 
town at which justice was administered. In the time of Ves- 
*pasian 360 towns are enumerated, including those having the 
full Roman franchise, those having the inferior franchise, the 
colonia, and the tributary towns, on the inferior classes of 
which he conferred Latin rights. Spain became one of the 
most thoroughly Latinized of all the Roman provinces, and 
all the characteristics of Roman civilization were developed 
throughout the peninsula. The vine and the olive were suc- 
cessfully planted, and agriculture flourished. The rich mines 
were opened, and the working of metals and weaving of 
fabrics were industriously followed. Latin became the lan- 
guage of the country, and among its sons the two Senecas, 
Lucan, Florus and Martial, were types of philosophers and 
poets of high order. In politics Spain can boast of having 
produced a Trajan and a Hadrian, who, during /forty of the 
best years the Roman empire ever knew, directed its affairs. 
The first great shock came in 256, when the Franks passed 
the Pyrenees and spread destruction over the peninsula. Tar- 
ragona was sacked and almost destroyed, and for twelve years 
the rich provinces were desolated and scourged by the bar- 
barous invaders. After this storm another era of peace and 
prosperity followed till 409. Contemporaneous with the sack- 
ing of Rome by Alaric, a tide of Suevi, Alani and Vandals 
swept over the country and desolated it. About 4 14. a Visi- 
gothic horde under Ataulphus and as an ally of Rome entered 
the country. Soon afterward Ataulphus was murdered and 
his successor Walia made a treaty with the Emperor Honorius, 
by which he nominally acknowledged the imperial sovereignty, 
and thereafter proceeded to subdue the Suevi, Alani and Van- 
dals. Although he was able to extend his authority over most 
of the peninsula, he was not able to thoroughly subdue these 
tribes, and for many years there was warfare between the 
Romanized Goths and the German tribes. About 429 the 



SPAIN AND PORTUGAL 429 

Vandals, led by their king Genseric, passed into Africa and 
established their dominion there. Under Euric, 466 to 485, 
the Gothic state was extended over a large part of Gaul, and 
the seat of government established at Bordeaux. Euric was a 
legislator as well as a warrior, and he caused to be collected 
and embodied into a written code the "Customs o/f the Goths." 
His successor Alaric II caused the work to be revised and en- 
larged by civil lawyers, incorporating many of the principles 
of Roman civil and ecclesiastical law. Roman sovereignty 
gradually gave way even in name to the actual rule of the 
Goths. The Gothic dominion soon yielded north of the Pyre- 
nees to that of the Franks, but continued in Spain with many 
wars and frequent domestic upheavals till the advent of the 
Saracens in 711. Under the Goths the people were ruled by 
an elective monarch and an hereditary aristocracy, represent- 
ing the temporal power, and by the church, which soon gained 
a predominant influence in the state. Bigotry, persecution and" 
the Inquisition, exhibited their barbarities, and by their side 
the Christian doctrine of the equality of all men before the 
law found place in their code. The barbarisms of valuing 
men's lives according to rank, of judicial combat and trial by 
ordeal, were unknown. The succession to the Gothic throne 
was often contested, and many occupants of it ifell by the 
hands of assassins. Here as elsewhere the dangers of wearing 
a crown failed to deter men from seeking the coveted prize. 
The Goths were Arians, though the major part of the Spanish 
population adhered to the orthodox faith. In the latter part 
of the sixth century King Ricared adopted the Catholic faith 
and proceeded vigorously and successfully with the conversion 
of his subjects. From that time forth Spain became the most 
reliable of Catholic states. Religious zeal, whetted possibly 
by the known wealth of the Jews, who dwelt in Spain in great 
numbers, caused their cruel and bloody persecution and a 
decree 'for the expulsion of the last of them from the country 
at the time when the Mohammedan power was spreading over 
northern Africa. 

The Jews invited the Saracens to invade Spain, but it can 
hardly be said that their encouragement was the cause of the 



430 EVOLUTION OF GOVERNMENTS AND LAWS 

invasion. In 711 Tarik with 5,000 men landed at Gibraltar. 
This force was inadequate to the task before it, and Tarik 
wisely awaited reinforcements before hazarding a decisive 
battle. Having received large accessions to his force both 
from Africa and from disaffected subjects of Spain, he 
marched out and destroyed the army of King Roderic in a 
long and hard fought battle, in which the tide was turned by 
the treachery of a part of Roderic's army. Tarik at once took 
advantage of his success and quickly overran the country. A 
state which it had taken the Romans two centuries to subdue 
was overrun and reduced by the Saracens in a few months. 
The rapid success of the Mohammedan armies in Spain, as 
elsewhere in the early days of religious zeal, was largely due 
to the superior treatment by them of conquered people. The 
alternative of the "sword, the tribute or the Koran" offered 
to those capable of adapting their beliefs to their material 
interests an easy escape from all oppression, and even when the 
tribute was imposed, it was a more moderate burden than 
many of the Christian rulers placed on their subjects. An 
example of this is given in the terms of the capitulation of 
Theodomir to Abdelazis after a stubborn resistance. 

"In the name of the most merciful God, Abdelazis makes 
peace on these conditions, that Theodomir, shall not be dis- 
turbed in his principality, nor any injury be offered to the 
life or property, the wives and children the religion and tem- 
ples of the Christians . . . that he shall not assist nor enter- 
tain the enemies of the Caliph, but shall faithfully communicate 
his knowledge of their hostile designs, that himself and each 
of the Gothic nobles shall annually pay one piece of gold, four 
measures of wheat, as many of barley, with a certain propor- 
tion of honey, oil and vinegar, and that each of their vassals 
shall be taxed at one moiety of said imposition." This was 
dated in the ninety- fourth year of the Hegira. 

Not content with the possession of Spain, the Saracens 
passed the Pyrenees and overran the southern part of Gaul, 
till their crushing defeat near Tours in J$2 by the Franks 
under Charles Martel put a definite end to their encroach- 
ments. By 759 they abandoned all possessions beyond the 
Pyrenees. 



SPAIN AND PORTUGAL 431 

The struggle for the mastery of the Mohammedan world 
carried on in the east resulted in the overthrow of the Omay- 
ads and the destruction of the members of the royal house- 
hold, except Abd-al-Rahman, who effected his escape to Spain, 
where he was warmly welcomed and after a struggle with the 
Abbasid adherents succeeded in establishing his authority. 
Though he and his immediate successors assumed the modest 
title of emir, all connection with the Caliphate was in fact 
severed and the independence of Spain was maintained. Un- 
der Abd-al-Rahman a struggle for mastery against opposing 
factions aided by the then overshadowing power oif the Franks 
resulted in the firm establishment of his power and a long era 
of peace, during which the schools of Cordova took high 
rank, and the study of mathematics, astronomy, medicine and 
kindred sciences was carried to the highest stage anywhere 
attained at that time. His descendants, who succeeded him 
in authority, left notable monuments of the wealth produced 
by the skill and industry of the people. The elegances of 
eastern civilization and the public utilities of roads, bridges 
and aqueducts, so characteristic of the Roman provinces, were 
exhibited in city and country in forms which have excited the 
wonder and admiration of later generations. To clearly com- 
prehend what is sometimes called Moorish civilization it must 
be borne in mind that the Mohammedans merely imposed their 
own authority and civilization on that which they found in 
Spain on their arrival. The country was not cleared of its 
ancient inhabitants, but the descendants of Phoenicians, an- 
cient tribes, Greeks, Romans and Germanic tribes still in- 
habited it and constituted a great majority of the population. 
In agriculture the Roman system prevailed. In trade^ Jews 
as well as Romans played an important part. In the arts and 
sciences the rulers wisely encouraged men of skill and learning 
from all parts of the world to teach as well as to labor among 
their people. The wealth of Spain was not alone in gold, 
silver and the works of laborers' hands, but in knowledge as 
well, and Cordova could boast of its library of 600,000 vol- 
umes. The prosperity of Spain under the Omayad dynasty 
illustrates the advantages of combining different civilizations 



432 EVOLUTION OF GOVERNMENTS AND LAWS 

in a proper spirit. The Arabs and their eastern followers 
brought with them the arts and acquirements of the east, 
which were added to the Roman civilization which preceded 
them. Each profited from the peculiar knowledge of the 
other, and each was stimulated to better effort in useful call- 
ings. But the Omayads also brought with them the seeds of 
the destruction of their empire. Religious bigotry, polygamy, 
the seclusion of women, and a despotic theory of government, 
worked out their natural results. How false the life of a 
typical oriental potentate is was pathetically expressed by 
Abd-al-Rahman III who ruled from 912 to 961, and under 
whom the height of oriental magnificence was maintained, in 
a memorial in which he said, "I have now reigned above fifty 
years in victory or peace, beloved by my subjects, dreaded by 
my enemies, and respected by my allies. Riches and honors, 
power and pleasure have awaited on my call, nor does any 
earthly blessing appear to have been wanting to my felicity. 
In this situation I have diligently numbered the days of pure 
and genuine happiness which have fallen to my lot; they 
amount to fourteen. O man! place not thy confidence in this 
present world." Like most others in similar station he failed 
to comprehend his own vices, and that he daily transgressed 
the laws of healthy liife. In his multitude of secluded ignorant 
women he lacked a worthy wife. In the abundance of the 
fruits of the labors of others with which his wants were sup- 
plied he lost the healthy relish which comes from useful effort. 
In the exercise of despotic power over the lives and for- 
tunes of others he was not disciplined by the salutary resis- 
tance which the freely expressed judgments of others of equal 
capacity afford. Most of all, in his exalted station he lacked 
the sympathy and ifellows'hip of others. Of the brotherhood 
of man he had no comprehension, and without it he could not 
realize the fatherhood of God. 

The Mohammedans, having extended their dominion over 
all the rich provinces of Spain, allowed a remnant of the 
Goths to take refuge in the mountainous district of the north- 
west. There Pelayo and a few hardy followers preserved 
their independence. Christians who preferred the hard life 



-- _ SPAIN AND PORTUGAL 433 

of the mountains to submission to Moslem rule in more genial 
districts, joined them, and thus the little state grew. Alfonso, 
the grandson of Pelayo, extended his possessions over Galicia, 
and his son fixed his capital at Oviedo. Though in name 
Christians, the Visigoths were still warriors whose principal 
employment was fighting the Mohammedans and each other. 
Succession to the throne of the petty state was olften the oc- 
casion of internal discord, and the record of assassinations 
and fratricidal wars for the throne is similar to that of other 
kingdoms of that time. By the end of the eighth century the 
kingdom of Oviedo was fairly well established and had de- 
feated the Moslems in several great battles. 

In 801 Charlemagne extended his power into the northeast 
of Spain and established a mark there, over which the Count 
of Barcelona ruled as representative of the Frankish Emperor. 
On the breaking up of the Empire the district olf Catalonia 
was subject to frequent transfers of sovereignty, being some- 
times under a local ruler and at others subject to Gaulic kings. 
About 900 Sancho founded the kingdom of Navarre, in the 
district in which the ancient Basques had taken refuge from 
the invaders, and into which later the Suevi withdrew before 
the Visigoths. The possessions of the kings of Oviedo were 
extended into Leon and Castile, and Sancho the great of 
Navarre extended his rule over Aragon. The German custom 
of dividing kingdoms as a patrimony among the sons pre- 
vailed, and the number of separate states depended on the 
number of sons of the kings and the success of one in taking 
the share of another by fraud or force. Thus the states of 
Leon, Castile and Aragon were formed. The mixed popula- 
tion of that part of Spain still held by the Arabs and the con- 
flicting religious beliefs and priestly leaderships were a source 
of never ending trouble to the rulers. The ninth century was 
a period of disorder, revolts and divided authority throughout 
the Mohammedan dominions, but much the same conditions 
prevailed among the Christians, and they neglected the op- 
portunities which the times afforded for the expulsion of the 
Mohammedans. Abd-al-Rahman III ascended the throne of 
Cordova in 912 and assumed the title of caliph. Though he 



434 EVOLUTION OF GOVERNMENTS AND LAWS 

did not succeed in establishing his sovereignty over the Chris- 
tian districts in the northern portion o'f the peninsula, such 
was his success in encouraging trade, agriculture and manu- 
factures, that the country enjoyed unexampled prosperity, 
and his revenues were sufficient to enable him to maintain an 
efficient army and navy and to annually devote vast sums to 
the construction of public works and buildings. Of all the 
rulers of his time he expended most of the money taken from 
his subjects by taxations for their education and for aque- 
ducts, bridges, roads and other objects really beneficial to 
them. The century following the accession of Abd-al-Rah- 
man III to the throne was the golden age of the Mohamme- 
dan dominion. In the early part of the eleventh century the 
state fell into disorder and civil war, and in 1031 by the 
abdiction of Hisham III the Omayad dynasty, which had 
ruled for three hundred years, came to an end; all central 
authority ceased and the state was split into disorderly ifrag- 
ments. It is noteworthy that under these conditions the larg- 
est and most enlightened cities, the great seats of learning 
and the arts, Cordova and Seville, were organized as republics. 
Following the fall of the Omayad dynasty there was a 
period of great discord and disorder in the Moslem districts, 
and the Christians made a substantial acquisition of territory. 
Among Mohammedans and Christians alike most of the civil 
strife and bloodshed resulted from the ambitions of the no- 
bility and the descendants of princes. The thirst for power 
was their dominant passion; wars against those nearest in 
blood were common, and treachery and assassination of broth- 
ers and other near relatives not infrequent. Those whom the 
people followed led them to destruction. Rulers were rarely 
actuated by any motive of duty or public service, but usually 
the sole object oif each was to aggrandize himself. The strug- 
gle between the followers of the two religions was not less 
mercenary, but had the added force of the desire for priestly 
dominion on either side, and the warriors were stimulated to 
risk their lives under promise of a sure reward in a life to 
come, each side equally confident that his God was the true 
God and that he fought against infidelity and falsehood. 



SPAIN AND PORTUGAL 435 

In the time of Gregory VII the Christians of Spain, who 
had been somewhat isolated, adopted the ritual of the Roman 
church and thenceforth became the most servile of its fol- 
lowers. The successes off the Christians induced the emir 
of Seville, then the most powerful of the Moslem princes, to 
call to his aid Yussef, the king of the Almoravids, who ruled 
over a vast African empire with Morocco as his capital. In 
response the king came with a strong army, and Alfonso VI 
of Castile, aided by the King of Aragon and Count of Barce- 
lona, was defeated in a great battle at Zallaka in 1086. Hav- 
ing been recalled to Africa by the death of his son, Yussef 
again crossed into Spain in 1090, and by the end of the century 
all the Mohammedan districts oif Spain were united under the 
rulership, not of a Spanish prince, but of the King of Mo- 
rocco. Alfonso VI of Castile had extended his power to such 
extent as to assume the title of emperor of Spain, but before 
his death the Moorish power curtailed his dominions. There- 
after his ambitious daughter Urraca warred with her husband 
Alfonso of Aragon, and as the result Alfonso ruled Aragon 
and Navarre and her son by her first husband, as Alphonso 
VII, ruled Castile, Leon and Galicia. In this age of crusades 
Spain also had its crusading orders, formed to fight the infi- 
dels, the Calatrava tfounded in 11 58, that of St. James Compo- 
stella in 11 75 and of Alcantra in 11 76. In the kingdom of 
Portugal, which grew rapidly in the twelfth century, there 
was the order of the Evora. In Africa Abd-al Mu min, as 
leader of the sect of Almohades, overthrew the empire of the 
Almoravids and then crossed into Spain. The Spanish Almo- 
ravids called to their aid the Christian kings of Castile and 
Aragon, but their combined forces were unable to cope with 
the victorious Moors, and a second Moorish rulership was 
imposed on the fairest part of Spain. The feuds and dissen- 
sions in the Christian states gave the Moors a respite from 
danger ifrom that quarter, but a revolt of the Almoravids in 
1 199 was followed by five years of civil strife, and soon after- 
wards a confederation of the kings of Castile, Aragon, Leon, 
Navarre and Portugal, was effected, mainly through the in- 
fluence of the Pope and clergy, and on July 16, 12 12 in the 



436 EVOLUTION OF GOVERNMENTS AND LAWS 

great battle of Las Navos de Tolosa the Moors sustained a 
defeat from which they never recovered. The old Arab 
leaders gave way in the district still held by the Moslems to 
the Moorish element, which thereafter dominated. In 1230 
Castile and Leon were united under Ferdinand III, who ex- 
tended his possessions at the expense of the Moslems, captur- 
ing Cordova and Seville, their chief cities, and others otf less 
importance including Cadiz. During the same period the 
king of Aragon extended his dominions over the Moorish 
possessions in the Balearic Islands, Valencia and Murcia, so 
that by 1266 the Moors were confined to Granada. By this 
time Portugal had acquired substantially the same territory 
it now possesses. Though reduced within such narrow terri- 
tories, the Moorish state, which had been reduced to a homo- 
geneous population, continued without material change in its 
dimensions for more than two centuries. Its history is one 
of struggles of aspirants for power with each other, of dis- 
sension and civil war, with occasional collisions with the Chris- 
tians, as well as alliances at times. 

The organization of society in the states of Castile and 
Aragon, which had now taken most prominent place in Spain, 
was similar to that of many other states in which Germanic 
elements were dominant, though modified somewhat by re- 
ligious and local influences. The power of the King of Cas- 
tile was not absolute. The cortes, which originally was a 
meeting of the great nohles and royal household, in 11 62 
admitted to membership deputies from the cities, who at first 
were elected by vote olf all free citizens and afterward by the 
city magistrates. The national assembly of the cortes was 
made up of three estates, the clergy, nobles and representatives 
of the towns, who deliberated separately at times and as one 
body at others. The two first named orders were exempt from 
taxation. The feudal system took root in Christian Spain. 
The nobles exercised judicial powers in their domains, and the 
bishops and higher clergy decided causes within their juris- 
diction in accordance with the laws of the church. The nobles 
and towns exercised the right of forming confederations for 
the protection of their rights by force, and the actual admin- 



SPAIN AND PORTUGAL 437 

istration of government was mainly local under the clergy, 
nobles and town authorities. Grants of taxes were made by 
the cortes, and in these matters at times only the third order, 
who represented taxpayers, were allowed to participate. 

The constitution of Aragon was still more restrictive df 
the kingly power. The cortes consisted of four estates, the 
great nobles, the equestrian order, the clergy and the represen- 
tatives of the towns. The concurrence of all was essential to 
the passage of a law, and they exercised the right of super- 
vision over the administration of justice and the expenditures 
of public moneys. The cortes assembled once in two years, 
and the king had no power to dissolve it. A most important 
officer was the justiza, appointed by the king from the eques- 
trian order. He could be removed only by the cortes, to whom 
alone he was accountable for his official conduct. His person 
was sacred, and he was the supreme interpreter of the laws. 
He could call the king's ministers to account and even dis- 
miss them from office for misconduct. Through him the oath 
of allegiance was expressed on behalif of the barons in the 
following form: "We who are each of us as good as you, 
and who are altogether more powerful than you, promise 
obedience to your government if you maintain our rights and 
liberties, but not otherwise." The cortes was not only the law- 
making power but the supreme court of justice, presided over 
by the justiza. The office gained dignity and power from the 
appointment of men of exceptional character and ability, who 
exercised a marked influence on the affairs of the state. 
Though the kingdom of Aragon by 12 13 included Catalonia 
and Valencia, each of these provinces had its separate cortes 
and was governed in accordance with its own laws, to which 
the people jealously adhered. The great nobles, in accordance 
with the feudal customs of the times, waged private wars and 
demanded their shares olf all conquests made 'by the state. 
The constitution of the cortes in Valencia and Catalonia was 
essentially the same as in Castile, having but three orders. 

Alfonso X of Castile, who came to the throne in 1252, 
caused a code of laws to be prepared, based on the civil and 
canon laws, called the Siete Partidas, but the adoption of it 



438 EVOLUTION OF GOVERNMENTS AND LAWS 

by the cortes was not effected till 1348, long after his death. 
The history of Castile from the time of Alfonso X to the 
union with Aragon is similar in its leading particulars to that 
of other European states where the feudal system prevailed. 
The kings and great nobles, instead of preserving the general 
peace by their wisdom and moderation, were turbulent, con- 
tentious and often cruel. Civil war often followed the demise 
of the king between factions supporting opposing claimants 
to the crown. When the crown was not an available pretext 
for war, the jealousies and rivalries of the nobles afforded 
other pretexts for bloody strife. Neighboring kingdoms also 
came in for their shares of the horrors of war, and during 
this period the Christian kings caused their subjects to war 
with each other quite as much as with the followers of the 
Prophet. In Spain as elsewhere in Europe the great nobles 
imposed a check on the power of the kings, which at times 
was reduced to little more than a shadow. The towns also 
preserved some measure of independence, but by taking the 
choice of delegates to the cortes from the mass of citizens 
and vesting it in the magistrates popular influence was greatly 
restricted and the opportunity for corrupt influences corre- 
spondingly increased. Throughout the country districts of 
Castile the rule of the nobles was despotic and the condition 
of the common people that of serfs. 

In Aragon there was far more of genuine restriction on 
arbitrary power. The king was even less potent than in Cas- 
tile, and the justisa and cortes gave the townsmen and common 
people some measure of protection. In Catalonia there was 
much genuine republican spirit. Still in Aragon the nobles 
through the theory of ownership of the land retained con- 
trol of the face of the earth and dictated to the multitude the 
terms on which they might live. Aragon had its written 
fundamental law, in 1283, called the "General Privilege," 
which placed limitations on the powers of the king and con- 
tained substantial provisions to secure the citizens against 
arbitrary power, but it was far from an effectual protection 
for the common people. In 1287 Alfonso III signed what is 
termed the "Privilege of Union," which allowed the subjects 






SPAIN AND PORTUGAL 439 

to take up arms against the king if he attempted to infringe 
their liberties. Pedro IV revoked it in 1348 after putting 
down a serious revolt. While doing this he swore to respect 
the personal and political liberties of his subjects. Through 
the claims of its rulers to the throne of Sicily, Naples and 
Sardinia, Aragon became involved in foreign politics and 
wars, and while the King of Aragon for a time ruled also 
over portions of Italy, no close union olf the detached terri- 
tories was effected, but each retained its customs and laws. 
In the thirteenth and fourteenth centuries the kingdom of 
Navarre was more closely connected with France than with 
Spain. Through various alliances of its reigning house with 
other rulers there were frequent changes in its rulership and 
territorial connections. In the fourteenth century by the mar- 
riage of John of Gaunt and Edmund of York to daughters of 
Pedro, King of Castile, claims to the Castilian throne arose, 
which brought English troops into the peninsula, and alli- 
ances with the French king shifted according to the prevail- 
ing influences of the time. The dreary details of intrigues and 
wars in the interest of contending princes are so similar in 
their essence that it seems altogether idle to (follow them. 
While a victorious leader may gain a name and be called a 
hero, the net result of the strife is always misery, woe and 
death to the multitude. 

The kingdom of Portugal developed from the fief of Terra 
Portucalensis, which Alfonso VI of Castile conferred on 
Henry of Burgundy in 1094. Its independence dates from 
the reign of Alfonso Henriques, renowned as a crusader 
against the Moslems. He reigned from 1128 to 1185. In his 
wars he received some aid by Templars and crusaders from 
Germany, Flanders and England. Allfonso II (1211 to 1223) 
summoned the first Portuguese parliament, which was con- 
stituted of high church officials and nobles. The feudal sys- 
tem prevailed there at that time, and the church had extended 
its possessions to such extent as to induce Alfonso to propose 
a statute of mortmain, prohibiting further acquisition of 
church lands. Under Alfonso III the boundaries of Portugal 
were extended to include substantially its present territory, 



440 EVOLUTION OF GOVERNMENTS AND LAWS 

and in 1254 he summoned a cortes, in which representatives 
of the cities were admitted to sit with the clergy and nobles. 
While Alfonso received from the city representatives the aid 
he anticipated in his contests with the clergy, on the other 
hand they denounced his tampering with the coinage and 
compelled recognition of their control over the levy of taxes. 
John I who came to the throne by the choice of the cortes, 
concluded an alliance with England, and in 1385 John of 
Gaunt aided him in his war with Castile with an army off 
5,000 Englishmen. His reign witnessed the increase of the 
possessions and power of the great nobles by grants of lands. 
In the fifteenth century the Portuguese took the lead in nauti- 
cal explorations and extended their voyages along the coast 
of Africa. 

In 1485 Bartholomew Dias rounded the Cape of Good 
Hope, and in 1497 Vasco Di Gama reached India by way of 
the cape. The Portuguese promptly took advantage of these 
discoveries, and in 1 505 Almeida was sent as viceroy to India. 
In 1520 Magellan, a Portuguese in the Spanish service, sailed 
through the straits at the extremity of South America into 
the Pacific Ocean. The foreign trade, which developed in 
consequence of these discoveries, brought rapid increase of 
wealth, but it also brought the poison of African slavery. 
The lands, especially in the south, were cultivated by black 
slaves. Though John II in 1484 had broken the power off the 
feudal lords by the drastic remedy of putting about eighty of 
the leading ones to death, the evils of a state made up of a 
few masters and many slaves rapidly developed along with 
the increased wealth. Bigotry was not confined to Spain, 
and in 1536 the Inquisition was introduced into Portugal 
with the same cruel and disastrous results as in Spain. The 
material advantages acquired by the discoveries of her sea- 
men were not preserved to the nation. Corruption in official 
stations, especially in the colonial governments, and emigra- 
tion caused by bigotry and oppression at home weakened the 
foundations of the state. In 1578 Sebastian invaded Africa 
and sustained a crushing defeat. Two years later Portugal 
was forced to submit to the dominion of Philip II of Spain. 



SPAIN AND PORTUGAL 441 

Ferdinand and Isabella were married in 1469. On the death 
of Henry IV of Castile in 1474, each claimed the throne, but 
the succession was ultimately settled on Isabella. Henry's 
daughter Joanna was also a claimant, supported in her pre- 
tensions by a faction of the nobles and also by her uncle 
Alfonso V of Portugal. Her adherents were defeated in bat- 
tle. On Jan. 20, 1479, John II, of Aragon died, leaving to his 
son Ferdinand the succession to the thrones of Aragon, Sicily 
and Sardinia. Though Ferdinand and Isabella thus came into 
possession of the kingly office of all these countries, they were 
not thereby consolidated into one kingdom, but for the time 
each retained its separate system of laws. Navarre, which 
came to John II by his first wife, passed to their daughter 
Eleanor. Ferdinand and Isabella set about increasing their 
own power and restricting the privileges of the nobility. In 
1476 the Santa Hermandad was organized as a popular con- 
federation throughout the whole olf Castile for police and 
judicial purposes. Its members were of the burgher class and 
its affairs were managed by local courts, from which an ap- 
peal was allowed to the Supreme Court, and by a junta of 
deputies from all cities convened annually. A body of 2,000 
cavalry was placed at the disposal of the brotherhood, and a 
special code of laws for its use was compiled in 1485. The 
jurisdiction assumed by the Brotherhood curtailed by so much 
that of the nobles, and afforded something like protection 
against their tyranny and injustice. The administration of 
justice took on some of the characteristics of a regular sys- 
tem, and educated lawyers were appointed to the chief judicial 
positions. To further strengthen the powers olf the sover- 
eigns they secured the grandmasterships of the powerful mili- 
tary orders of St. Iago, Calatrava and Alcantara, which in in- 
dependent hands might prove dangerous. Lavish grants of 
crown lands were revoked and the domains reclaimed. Under 
the prudent administration of Isabella, to whom the credit 
of administrative reforms is given, the revenues were increased 
from 885,000 reals in 1474 to 26,283,334 in 1504 without the 
imposition of any new taxes, but the latter sum was received 
after the acquisition of Granada and includes its taxes. In his 



4U EVOLUTION OF GOVERNMENTS AND LAWS 

appointments to official positions Ferdinand chose men attached 
to his interests, without regard to their rank, and built up a 
personal following on which he could rely. Few sovereigns 
have exercised so profound an influence on the institutions 
and characteristics of a state as Ferdinand and Isabella. Be- 
ing both most devout Catholics, they set about removing the 
last vestige off Moslem power from the peninsula, and after 
a long and bloody war on Jan. 2, 1492, they entered Granada, 
the last stronghold of the Moors, in triumph. The religious 
zeal of Ferdinand accorded with the prevailing sentiments of 
the great mass of his Christian subjects, and by a skillful use 
of the religio-military orders and priestly influences he at- 
tached to his interests sufficient force to enable him to over- 
awe and master the proud Castilian nobility. It accorded with 
his general policy as well as his religious bigotry to introduce 
the institution of the Inquisition into Spain. In 1478, on the 
application of the king and queen, Pope Sextus IV issued his 
bull for the establishment of the Holy Office, as it was termed, 
in Spain, and granting it the right to appoint the inquisitors. 
In 1480 the first were named from among the Dominicans, 
and early in 1481 they began their work at Seville. The 
ostensible purpose of the Holy Office was to inquire into and 
correct errors of religious faith, and thereby preserve and 
protect in its purity the Christian religion. The sa)fety of 
human souls according to the doctrines of the church de- 
pended, not on conduct or morals, but on belief in the estab- 
lished creed and observance of church forms and requirements. 
Disbelief of its doctrines or noncompliance with its ceremonies 
was magnified into crime and given the direful name of heresy. 
To discover and suppress heresy was the mission of the Holy 
Office. In Spain the Christians had to deal with Mohamme- 
dans and Jews, stiff necked and perverse unbelievers, on whom 
it was deemed useless to use argument or persuasion, for they 
had deliberately chosen to follow false doctrines. Many of 
them were also guilty of another offense, which may have in- 
cited the activity of the inquisitors quite as much as errors olf 
faith, namely that of possessing wealth. It was intolerable 
that heretics should live in peace and enjoy wealth while the 



SPAIN AND PORTUGAL 443 

king and clergy wanted money. The new tribunal commenced 
its work vigorously, and in the first year 298 victims were 
burned at Seville alone and their estates confiscated. In ans- 
wer to protests from citizens who did not approve of this 
barbarity, the Pope ordered a more mild administration of the 
Holy Office and named the archbishop of Seville as sole judge 
of appeals in matters of faith. In 1483 Thomas of Torquem- 
ada was named by the Pope inquisitor general for Castile and 
Leon, and he proceeded to organize his dread tribunals. He 
was the president of the court with two lawyers as assessors 
and three royal counsellors. This force being found still in- 
sufficient for the work, a central court was organized styled 
the Come jo de la Supremo,, composed of the inquisitor gen- 
eral, six apostolical counsellors, a fiscal proeuratbr, three 
secretaries, an algnadl (chief of police), a treasurer, four 
servants, two informers, and such other agents as might be 
needed from time to time. Under this central tribunal there 
were four local ones. All the officials connected with the Holy 
Office were paid out of the confiscated estates and were there- 
fore directly interested in finding heretics of wealth and con- 
victing them. The Inquisition proceeded to formulate its 
rules, which were embodied in thirty-nine articles and defined 
the procedure of the Holy Office. These provided for sum- 
moning heretics to come forward and confess, fixed the pen- 
alties to be borne by the penitent and submissive, regulated the 
treatment of penitents in prisons, the torture to extort con- 
fessions and other procedure of trials, and authorized the con- 
demnation of dead heretics whose estates were coveted. The 
Inquisition was nowhere approved by the people and occa- 
sioned a revolt in Aragon, but the combined power of the 
church, the religious orders and the crown maintained it. The 
procedure was provided with ample forms to fill the require- 
ments of a judicial system, but none of them were designed 
to afford protection to an innocent person falsely accused. 
When complaint was made, a preliminary examination was 
held and the result reported to the tribunal. If the case was 
regarded as one calling for action, the informers and wit- 
nesses were reexamined and the evidence submitted to "the 



444 EVOLUTION OF GOVERNMENTS ANID LAWS 

Qualifiers of the Holy Office," a body of priests. These hav- 
ing given their opinion against the accused, as was their cus- 
tom, he was removed to the secret prison of the Office and 
cut off from all communication with the outside world. Then 
followed three "first audiences," in which the officials did 
their best to extort a confession. If unsuccessful in this 
the fiscal in charge demanded torture to extort a confession. 
After torture, for which the most fiendish devices were used, 
the victim was taken before the court, where the charges were 
for the first time read to him, and he was asked if he desired 
to make a defense. If he answered that he did, he was al- 
lowed to choose a lawyer from a list furnished by the court, 
all of whom could be relied on to offer no obstacle to a con- 
viction. After all the evidence was in the Qualifiers were 
again called on for their opinion on the whole case. This 
being adverse to the accused, he was sentenced with privilege 
of appeal to the Supreme tribunal or to the Pope. These ap- 
peals afforded a chance for the friends of the accused to 
contribute their means to the papal treasury. If, as sometimes 
happened, the victim was at last acquitted, he might retire to 
his home, broken in body and ruined in fortune with no re- 
dress against his accusers. If condemned, he was brought 
before the court, regaled with the solemnity of the Auto-da-fe 
and informed of his fate. He might then become reconciled 
and as a penitent submit to the severe penalties prescribed, or, 
refusing to do so, he was "relaxed," that is turned over to the 
secular authorities to be burned ; for the church shed no blood ! 
Later under Ximenes the institution was further extended 
by the organization of ten tribunals, at Seville, Jean, Toledo, 
Estramadura, Murcia, Valladolid, Majorica, Pampeluna, Sar- 
dinia and Sicily, and under Charles V and Philip II it was 
extended and performed its horrible work on the Protestants 
of the Netherlands, of whom great numbers were tortured and 
burned. The institution was introduced into Portugal in 1536 
on the solicitation of John III, where it performed its deadly 
office with great vigor. Its blighting influences were mani- 
fested by a marked decrease of the population of Spain and 
Portugaland by the crushed spirit of the people. Literature 



SPAIN AND PORTUGAL 445 

could not thrive where almost any publication was liable to be 
found by the Qualifiers to contain heretical expressions. The 
figures given of the numbers who in Spain became victims olf 
the Holy Office prior to 1810 are sufficiently appalling, 31,912 
burnt alive, 291,450 imprisoned as penitents and 17,659 burned 
in effigy and their estates confiscated. But this by no means 
indicates the full measure of misery and evil caused by this 
awful wickedness. Great numbers lejit their homes and per- 
ished in foreign lands to escape its hands, and all freedom of 
expression and intellectual progress were blasted. Though 
acting with close observance of forms and executing what 
were regarded as written laws, sanctioned by that authority 
most highly venerated, the Roman Church, in their actual 
workings these tribunals utterly disregarded all law, human 
and divine, and trials before them were conducted by methods 
that could not fail of the most diabolical results. The accusers 
were the judges and profited by every conviction. The pro- 
ceedings were secret, and the accused denied all tests by which 
the falsity of the evidence against him could be shown, or by 
which (facts favorable to his innocence might be established. 
Confinement and torture were inflicted on those accused, 
whether guilty or innocent. But beneath all this the whole 
system was utterly wanting in any moral basis. The alleged 
crime of heresy is a myth. The opinions on religious subjects 
of one mind are as sacred as those of another. 

Though utterly indefensible in its purposes and methods 
and baneful in its results, the Inquisition was still a logical 
outgrowth of the prevailing spirit of the times. During more 
than seven centuries difference of religious faith had fur- 
nished the pretext for bloody wars between Christians and 
Mohammedans, in which many battles were fought in either 
of which more men were killed for religion's sake than all 
whose lives were taken by the Inquisition. Though the moral 
sense of the Christian world of today revolts at the cruelties 
and rank injustice of the Inquisition, it still glories in the deeds 
of the Cid and the many renowned kings of Spain and Portu- 
gal who led their people to death in wars against the infidels, 
and draws deep satisfaction from accounts of the wholesale 



446 EVOLUTION OF GOVERNMENTS AND LAWS 

slaughter of the more polished and industrious followers of 
the Prophet. To establish a tribunal to punish those who 
after the expulsion of the Moors still persisted in denying the 
creed of the victors was merely carrying the purpose of rid- 
ding Spain of unbelievers to its logical end. What use to 
drive out the Moslems by force of arms if unbelievers might 
still retain their wealth and dwell in security in Spain? Why 
kill heretics in battle if they were entitled to live in peace after 
their armies were destroyed ? The savagery of war still gains 
the approval and even the admiration of most of mankind, 
though it has been productive in Spain of a hundred times 
more misery than the Inquisition. 

The wars of Ferdinand were not confined to those against 
the Moorish followers of the Prophet, but in Italy he fought 
against other Christians for territory which he claimed as 
appurtenant to the throne of Aragon, and wrested Naples 
from the French king. The greatest glory of the reign of 
Ferdinand and Isabella came as the tfruit of a peaceful enter- 
prise for which Isabella made provisions. The discovery of 
America by Columbus gave Spain a prestige and an oppor- 
tunity for expanding its wealth and power far outweighing all 
the conquests of Ferdinand in his bloody wars. The year 1492 
witnessed the departure of the Moors from Spain and the 
opening to view of the new world. On the death of Isabella 
in 1504 there was a temporary separation of Aragon and Cas- 
tile, occasioned by the selection by the Castilians of the arch- 
duke Philip as regent during the minority of the infant 
Charles, but Philip's death was followed by the choice of 
Ferdinand as regent. In 1512 he wrested Navarre ifrom 
France, thus combining all Spain under his rule. The policy 
of Ferdinand, steadily pursued throughout his long reign, 
resulted in the concentration of the powers of government in 
the hands of the king. The administration was carried on 
through the instrumentality of five councils, the "Royal Coun- 
cil" as the highest court of justice, the "Council of the Su- 
preme" for ecclesiastical affairs and the Inquisition, the 
"Council of the Orders" for the direction of the great military 
orders, the "Council of Aragon" for the management of that 



SPAIN AND PORTUGAL 447 

kingdom and Naples and the "Council of the Indies" 'for the 
territories discovered by Columbus. The firm alliance be- 
tween church and state and the religious policy established 
during this reign fixed the character and moulded the policy 
of the Spanish government till modern times, and still in- 
fluence it in great measure. Ferdinand died in 15 16 and 
Charles, son of his daughter Joanna and of her husband Philip 
son of the German Emperor Maximilian I, succeeded to the 
thrones of Castile and Aragon, and thus the House of Haps- 
burg came to the united Spanish throne. In 15 19 Charles 
succeeded his father as emperor. Serious revolts followed. 
Charles was a foreigner by birth, reared in the Netherlands, 
and it was only by intimidation that he obtained supplies for 
his wars from the cortes. After his authority had become 
well established and all rebellions suppressed, Charles con- 
vened the Castilian cortes in 1523 and compelled them to grant 
supplied before presenting their petitions for redress, thus 
establishing a precedent adhered to thereafter, which gave 
him what he required and still left him free to reject all de- 
mands of the cortes. During his reign Cortes conquered 
Mexico, Pizarro, Peru, and Milan and a portion of North 
Africa were added to his dominions. In 1538, as a result of 
the refusal of the nobles in the Castilian cortes to consent to 
an excise tax, Charles excluded them from seats in the cortes, 
which thereafter consisted of only thirty-six deputies from 
eighteen towns, who were wholly wanting in strength to op- 
pose the will of the king. On the abdication of the throne by 
Charles, his brother Ferdinand became emperor of Germany, 
and his son Philip succeeded to the Spanish throne and made 
Madrid his capital. He was a narrow bigot, and his policy 
was thoroughly despotic. By military 'force he crushed all 
remnants of popular liberty, and by the aid of the Inquisition 
he destroyed whomsoever he pleased. He caused the justiza 
of Aragon to be put to death and assumed the right of naming 
his successor. The control of the cortes over judicial affairs 
was taken away. The extension of Spanish dominions gave 
to the king ample power to take away the ancient privileges of 
the provincial cortes separately, and the Spanish people suf- 



448 EVOLUTION OF GOVERNMENTS AND LAWS 

fered from the spread of Spanish dominion. In 1580 Philip 
maintained his claim to the throne of Portugal by an army 
commanded by the Duke of Alva, and thus the whole penin- 
sula became united under his rule. During his reign the In- 
quisition employed its force to crush Protestantism in the 
Netherlands, but met with a stubborn resistance that after the 
martyrdom of vast numbers of its citizens finally resulted in 
independence. 

Philip died in 1598, leaving a great empire to his son Philip 
III, yet the search for gold in the New World and the prose- 
cution of wars for the aggrandizement of the king consumed 
the lives of men and impoverished those rich districts, which 
when properly cultivated by a peaceful and industrious popu- 
lation yielded riches in great abundance. Though in the wilds 
of America priests sought to convert the heathen, Spanish 
policy everywhere was wanting in moral strength. Wars of 
conquest and the vast acquisitions of American gold failed to 
make good the loss of the natural returns of the efforts of 
her soldiers if employed in peaceable callings. The gold suf- 
ficed for only one purchase and then passed into the channels 
of trade. The industries of the Netherlands enabled them to 
keep the gold which Spain wrested from her new subjects. 
The narrow bigotry of Philip III found expression in 1609 
in an order requiring all Moriscoes to leave Spain within three 
days under penalty of death. The order was wholly without 
justification in morals or economics, as the Moriscoes consti- 
tuted the most industries, skillful and peaceful portion of the 
population. They were leaders in agriculture and manufac- 
tures, and their expulsion was a crushing blow to the material 
resources of the kingdom, as well as a most cruel and un- 
justifiable infliction on them. By their expulsion the revenues 
were greatly reduced. The desire for foreign dominion and 
devotion to the Catholic cause combined sufficient influence 
on Philip to draw him into the Thirty Years' war in Germany. 
Spanish troops took a leading part in that great contest and 
came in contact with the Swedes and their Protestant allies. 
The wars brought neither profit nor glory to Spain. The 
Dutch gained signal victories over the Spanish fleets and 



SPAIN AND PORTUGAL 449 

destroyed their naval ascendency, which had resulted from 
the discovery of America. Though great victories were 
gained on land, they were barren of advantageous results. 
An edict calling all able-bodied men to join the army resulted 
in a revolt in Catalonia, the driving out of the Castilian troops 
and the establishment of a republic under the protection of 
France. Still more important in its permanent consequence 
was the revolt of Portugal, occasioned by the same measure, 
and resulting in the independence of that kingdom in 1640. 
As a result of naval victories the Dutch took from Spain its 
possessions in Malacca, Java, Ceylon and much of Brazil, and 
forced it to abandon its claims to Holland and even to cede 
to them the northern districts of Brabant, Flanders and Lim- 
burg. Catalonia was soon reduced to submission. France 
having effected an alliance with England, forced the Spaniards 
to submit to still ifurther loss of territory in the low coun- 
tries. Under Philip IV and Charles II Spain continued to 
lose prestige down to the time of the death of the latter in 
1700. The effects of religious bigotry, of despotic govern- 
ment, of the concentration of the wealth of the country and 
the ownership of the lands in monastic establishments and 
an indolent nobility, devoid of all enterprise and given over 
to luxurious living, and of a most unwise and oppressive sys- 
tem of taxation, are better shown by a comparison of con- 
ditions in Spain at the close of that period with those in 
former times, than by the mere loss of rulership over distant 
provinces. The population of the country, estimated at 
twenty millions under the Arabs and at twelve millions under 
Ferdinand and Isabella, had fallen to six millions under 
Charles. The Moors, the most industrious element of the 
population, had been driven out; manufactures declined, fer- 
tile districts became barren through lack of cultivation, the 
destruction of trees and general inefficiency of the agricultural 
system. After being the first naval power in the world Spain, 
ceased to be formidable on the sea. Her foreign commerce 
passed into the hands of the Dutch and English merchants, 
and she was unable to hold the trade of even her own colo- 
nies in the new world. Education was neglected. The people 



45Q EVOLUTION OF GOVERNMENTS AND LAWS 

were neither instructed in letters nor in the useful arts. 
Nowhere else has the contrast between a fairly just and liberal 
Mohammedan policy and a bigoted cruel and unjust enforce- 
ment of a creed called Christian been exhibited so disad- 
vantageously to the latter as in Spain. Nowhere else have 
scientific truth and the moral law been so ruthlessly super- 
seded by a false and cruel priestly tyranny. The war of the 
Spanish succession, which ensued on the death of Charles II, 
involved no principle of interest to the multitude, but was a 
contest instigated by crowned heads for their own ends. 
France, England, Portugal, Holland and Austria were all in- 
volved, and bloody battles were fought, but at the end by the 
accession of the Archduke Charles to the throne of Austria 
and the German empire England found that the cause for 
which it had fought was the one most dangerous to its inter- 
ests. Peace was concluded leaving Gibraltar and Minorca in 
the possession of England with the added privilege of im- 
porting slaves into the Spanish colonies. The right of Philip 
V to the Spanish throne was recognized, the cause of the Cata- 
lans, who had supported Charles, was abandoned, and they 
were left to defend themselves. Though they fought obsti- 
nately, the power of Castile was too great; they were crushed 
and all their ancient liberties were forever after denied them. 
Thereafter they were ruled from Madrid under Castilian laws. 
Later Philip neglected his subjects at home and caused many 
of them to fight against Austria for possessions in Italy. The 
contest dragged on till his death in 1744. No advantage came 
to Spain from the long contest, but a little added territory 
for Don Philip to pass to Austria on the extinction of his 
male descendants. 

Ferdinand VI, spoken of as weak and obstinate, had the 
blessed courage to keep the country at peace. He refused to 
be drawn into the Seven Years' war, and for the thirteen years 
of his reign he allowed his subjects exemption from the hor- 
rors of war. The reign of this monarch also witnessed a 
marked reaction against the papal power. In 1753 he as- 
serted his right to appoint to all important benefices, and of 
the 12,000, which the Pope had filled before, Ferdinand left 



SPAIN AND PORTUGAL 451 

only fifty-two. He next issued an edict that henceforth papal 
bulls should not be obeyed till they had received the royal sanc- 
tion. Charles III, who came to the throne in 1759, continued 
the work by driving out the Jesuits, restricting the extension 
of church lands, and moderating the cruelties of the Inquisi- 
tion. At the time of the American revolution Spain joined 
with France against England, and on the conclusion of peace 
gained Minorca and Florida. This reign was one of material 
progress. The ministers sought to restore prosperity by the 
encouragement and protection of industry and trade. By a 
most commendable ordinance issued in 1773 an effort was 
made to remove the Castilian prejudice against trade by de- 
claring that no loss of rank or privilege should be occasioned 
by engaging in industrial occupations. Agriculture was 
stimulated by the construction of roads and canals, and by 
removing the restriction on inclosures, that had been imposed 
at the instance of the owners of the great flocks olf sheep 
which overran the country and destroyed all cultivated crops. 
Charles III died and Charles IV came to the throne at the 
outbreak of the French revolution. A Bourbon king could 
not sympathize with a demand for popular rig'hts, and the 
policy of the Spanish monarch was reactionary and directed 
to strengthening the despotism. Spain joined the first coali- 
tion against France and sustained crushing defeats in the 
campaigns of 1793 and 1794, due mainly to inefficient organi- 
zation and want of supplies. This was followed by a treaty 
of peace which bound Spain in an alliance with France against 
England. In 1800 Spain ceded Louisiana to France and 
agreed to aid her in all her wars, and in 1801 invaded Portu- 
gal at the call of Napoleon. In the struggle with England 
the Spanish fleet was destroyed and the prestige of the former 
nation at sea firmly established, but French influence still 
dominated, and in 1808 Napoleon caused Charles IV to a'b- 
dicate and placed his brother Joseph on the throne. A popular 
uprising was temporarily successful and entrusted the gov- 
ernment to a junta of thirty-four, to rule in the name of 
Ferdinand, but Napoleon soon scattered their army and re- 
stored his brother to power. The national party made Cadiz 



452 EVOLUTION OF GOVERNMENTS AND LAWS 

its capital, and in 1810 the cortes assembled there. In 181 2 it 
promulgated a constitution providing for a limited monarchy 
with all legislative power in the hands of a single national 
assembly. 

With the aid of the English under Wellington the French 
were driven out of Spain in 181 3, and in the next year Fer- 
dinand VII returned to Madrid and assumed authority. He 
set aside the liberal constitution, restored the nobles and the 
monasteries to their privileges and exemptions from taxation, 
allowed the Jesuits to return and the Inquisition to resume 
operations. A tyrannical and profligate court and bigoted 
clergy again combined to crush all liberal sentiment. In 181 9 
the sale of Florida to the United States, the revolt of the Span- 
ish colonies in America and the ill success of the government 
in its efforts to reduce them to obedience, caused great popular 
discontent throughout Spain. In 1820 a revolt started at 
Cadiz, which rapidly spread over the whole country. The 
king accepted the constitution of 18 12, dismissed his ministers 
and put liberals in their places. The cortes met and proceeded 
to abolish the monasteries, the Inquisition, the clerical titles 
and entails of landed estates, and to pass laws to secure free- 
dom of the press and of public meetings. This was distasteful 
to the monarchs olf Europe, and in 1823, at the dictation of the 
Holy Alliance through a congress at Verona held by France, 
Austria, Russia and Prussia, a French army invaded Spain 
and restored despotic power to Ferdinand. 

In 1829 Ferdinand issued an edict abolishing the Salic law, 
which excluded females from succession to the throne. In 
1833 ne died, and his infant daughter Isabella was proclaimed 
queen with her mother as regent. Ferdinand's brother, Don 
Carlos, claimed the crown under the Salic law and drew to 
his aid the supporters of absolutism. Christiana was support- 
ed by the liberals and granted a constitution establishing two 
legislative chambers chosen by indirect election. This was not 
satisfactory to the liberals, and in 1836 the constitution of 
181 2 was revived. By 1839 the Carlists were subdued. In 
1843, after temporary ascendency of the radicals, which had 
caused Christiana to withdraw to France and the selection of 



SPAIN AND PORTUGAL 453 

Espertero as regent by the cortes, Isabella became of age and 
was recognized as queen. The history of her reign is one of 
court intrigue, with the reactionary party in the ascendency 
' most of the time. Married to a cousin, who was believed to 
be an imbecile, though not really quite so, she had piety with- 
out morality, and the Spanish nation had to bear the shame of 
a notoriously licentious woman as its queen; fat, coarse and 
indolent, she yet was good natured, generous and kind hearted. 
She even delighted in granting pardons, to which Spanish 
monarchs generally showed great aversion. In 1854 there was 
a popular uprising with rioting at Madrid, resulting in the 
appointment of a liberal ministry, whose purposes were ex- 
pressed in a proclamation stating : "We desire the preserva- 
tion of the throne, but without the carmarilla which dishonors 
it ; the rigorous enforcement of the fundamental laws, improv- 
ing them, especially those of elections and the press ; a diminu- 
tion of taxation founded on strict economy, and also respect 
to seigniority and merit in the military and naval services. 
We desire to give the towns the local independence necessary 
to preserve and to increase their own interests, and as a guar- 
antee of these things we desire a national militia." 

In 1866 Isabella recalled her old ministers, the most prom- 
inent liberals were driven into exile and the cortes dissolved. 
In 1868 another revolt occurred which caused Isabella to go 
to France. A cortes was summoned and met in 1869, which 
adopted a new constitution providing for a limited monarchy. 
It substituted the principle that the sovereign power was de- 
rived from the people for the doctrine of divine right of kings, 
granted religious liberty and provided for a Council of State, 
a Senate and House off Representatives. A regent was chosen 
to hold pending the choice of a king. In Nov. 1870 Amadeo 
of Savoy was chosen by the cortes, but he left the country, 
which he could not successfully govern, in Feb. 1873. There- 
upon the cortes proclaimed a republic. War with the Carlists 
followed without very decisive results. The republic lacked 
vigor, and on the last day of 1874 Alfonso XII, son of Isa- 
bella II, was proclaimed king and acknowledged by the army. 
There had been five changes of ministry in less than two years 



454 EVOLUTION OF GOVERNMENTS AND LAWS 

with much modification of the theory of government, the last 
being a virtual dictatorship. The Carlists continued the fight 
for a short time, when Don Carlos gave up the struggle and 
left the country. Under the reign of Alfonso XII as a con- 
stitutional monarch Spain enjoyed peace till his death in 1885. 
After his death a son was born, who came to the throne as 
Alfonso XIII. His mother ruled as regent through his mi- 
nority, during which time Spain was forced by the United 
States to relinquish its claims to Cuba, Porto Rico and the 
Philippine Islands. 

Shorn of its foreign possessions, it does not necessarily fol- 
low that the people have to face more unfavorable conditions. 
On the contrary there are evidences already that the statesmen 
of Spain are beginning to grasp the true basis of national 
greatness. Proud, indolent grandees, who refuse to do any- 
thing useful and squander the resources of the country in 
ostentatious living, are a curse and nothing more to any coun- 
try. Those of Spain have ifor many centuries been advanced 
types of worthless nobles. Though popular government was 
not unknown in many of the districts of Spain, and the people 
of Aragon, Catalonia, the Basque provinces and the large cities, 
have exhibited a disposition and capacity for preserving popu- 
lar liberty, the composition of society throughout the nation 
seems to be such as to still invite abuses in the administration 
of public affairs. The grand lack in Spain, as everywhere else 
on the face of the earth, is of knowledge, social virtue and 
morality. The people are more generally illiterate than else- 
where in Europe, though under the Arabs their schools were 
probably the best then in existence. Primary education has 
been compulsory by law since 1857, but only a small portion of 
the population can read and write ; about twenty-five per cent. 
Progress is being made, however, and the time is probably not 
far distant when the Spanish people will take the rank to 
which they are entitled, and which in past generations was not 
inferior to any others in Europe. 

By the fundamental law o/f June 30, 1878 the monarchy is 
hereditary, and the king becomes of age at sixteen. He is 
grand master of the eight orders of knighthood. He exercises 



SPAIN AND PORTUGAL 455 

the legislative power in conjunction with the cortes, which 
is composed of a senate and a chamber of deputes. The senate 
is made up of three orders: I. Members by right of birth, 
princes, rich nobles and the highest state officials. 2. Members 
nominated by the king for life. 3. Members elected by the 
state corporations and chief tax payers for a term of five 
years. The number of the first two classes must not exceed 
one hundred and eighty, and there may be as many of the 
third. The chamber off deputies consists of one deputy for 
every 50,000 population, elected for five years, by electors 
twenty-five years of age, who have paid a land tax of twenty- 
five pesatas for one year or an industrial tax of fifty pesatas 
for two years. There are eight executive departments, pre- 
sided over by ministers responsible to the cortes for their acts. 
Tn each province there is a civil governor and an elective coun- 
cil chosen by the communes. The system of laws as in most 
European states is based on the Roman law with local modifi- 
cations. There is a court of first instance in each of the 501 
judicial districts into which the kingdom is divided and a court 
of second instance in each of the fifteen divisions in which 
they are grouped, with a supreme court of cassation or review 
at Madrid. Justice is administered publicly, and parties must 
be represented by counsel. 

On achieving independence ifrom Spain in 1640 Portugal 
recognized John IV as king. Portugal exhibited substantially 
the same tendencies toward increased power in the monarch 
as most European states for the next century, though some 
great reforms were made, especially in the reign of Joseph, 
who came to the throne in 1750 and abolished slavery, which 
had become a great curse to the country. From 1677 to l & 2 & 
the cortes never convened. The people of Portugal were pro- 
foundly impressed by the French revolution and were involved 
in the succeeding wars. In 1820 a constituent assembly 
framed a constitution abolishing the Inquisition and with 
many radical changes, but this constitution never became fully 
operative. 

In 1826 Pedro IV, who had ruled Brazil under his father 
succeeded to the throne of Portugal also. He drew up a 



456 EVOLUTION OF GOVERNMENTS AN1D LAWS 

charter for a constitutional monarchy and appointed his brother 
Miguel regent of Portugal. Miguel refused to recognize the 
constitution and assumed absolute power. Civil war soon fol- 
lowed. The struggle between the reformers and the adherents 
to the ancient order continued with varying success and more 
or less violence to the close of the reign of Maria II. Some- 
times the constitution was followed, then it was amended, and 
at other times disregarded, but by the time of the accession 
of Pedro V in 1855 matters had become fairly settled, and 
Portugal entered on a more peaceful and prosperous career. 
In 1852, 1878 and 1895 the charter of 1826 was amended. 
The monarchy was hereditary, and the king ruled with the 
advice of a cabinet of seven members chosen by a premier 
named by the king. The cortes consisted of a House of Peers 
of ninety members, nominated by the king for life. They 
were not all titled nobles, nor were all the nobility entitled to 
seats. The House olf Deputies had one hundred and forty- 
eight members, elected by all male citizens twenty-five years 
of age or over, who paid above $1.10 direct tax per year or 
had an annual income from real estate of $4.50. By the 
revolution of 1910 the monarchy was overthrown and a repub- 
lic established. The religious orders were expelled and their 
property confiscated. The Council of State was abolished as 
were also all hereditary titles and privileges. The country 
is divided into seventeen administrative and twenty-six judicial 
districts. There are courts of appeals at Lisbon and Oporto 
and a Supreme Court at Lisbon. There are governors in the 
administrative districts and elected councillors in each of the 
292 concellos and in each of the 3960 fregiiezias there 
is a magistrate elected by the people, with authority corres- 
ponding to that of a justice of the peace. Education is com- 
pulsory under the law of 1844, which required all children 
from seven to fifteen years of age to attend a primary school. 
There is a university at Coimbra and there are at various towns 
secondary and high schools. The improvement olf the system 
of government and the increased prosperity of the people have 
followed the work of the schools. The economic, moral and 
political value of the general diffusion of knowledge among 



SPAIN AND PORTUGAL 457 

the people has been shown by the improvements in social and 
material conditions. 

Authorities 

Henry Coffee : History of the Conquest of Spain by the 

Arab Moors. 
W. H. Prescott: History of the Reign of Ferdinand and 

Isabella. 
W. H. Prescott : History of the Reign of Charles V of Spain. 
Gibbon: Decline and Fall of the Roman Empire. 
Guizot : History of Civilization. 
Hallam: Middle Ages. 
Encyclopaedia Britannica. 
Continental Legal History Series, vol. 1. 



CHAPTER XIX 

Denmark, Sweden and Norway 

The inhabitants off the Scandinavian peninsula and of the 
islands and peninsula lying* across the water to the south are 
so closely allied in blood, and their history has been so closely 
connected, that the development of their institutions will be 
treated together. That they are closely related to the Germans 
is evident, though the date of their separation precedes history. 
Their earliest known organization differed from that of the 
Germanic tribes in the system of land tenure. The village 
tenure in common never obtained so far as we are informed. 
Land was treated as the property of the individual owner. 
Slavery existed, though the number of slaves was not large. 
The spirit of the people was distinctly opposed to submission 
to authority, and the power to manage their affairs remained 
in the body of freemen. Local affairs were determined in a 
meeting of the free men of the district, and those off the whole 
country by a general assembly of freemen, there being no sys- 
tem of representation. Before the advent of written laws the 
Swedes and Norwegians had their law-men, who were looked 
to as repositories of the traditions of the law. They recited 
the laws to the people in their assemblies — Things — and were 
consulted in cases of doubt. The Scandinavians first became 
known to the balance of Europe from their incursions by sea. 
They were navigators at an early day, and their enterprises 
were directed against all the coasts of the continent and British 
Isles, which they pillaged and laid waste in the most ruthless 
manner from the Baltic to the Mediterranean. No other coun- 
try then produced such bold navigators and reckless warriors. 
They did not engage much in commerce, but were generally 
pirates and freebooters. At home they were little less fierce. 
Courage and hardihood were the virtues most regarded, and 
these seem to have been possessed in an unusual degree even 

458 



DENMARK, SWEDEN AND NORWAY 459 

by the women, some of whom took part in their expeditions. 
In early times there were petty kings in each district, chosen 
as leaders by the free men, with little real power over their 
followers. There was no code of laws, but disputes were de- 
termined by combat or by the freemen in their assembly in 
accordance with ancient customs and advice of their law- 
men. 1 Distinctions of wealth and leadership had developed 
a nobility by the dawn of their history, but without destroying 
the authority of the freemen assembled in their things over 
all public affairs. 

It is said that Gorm the Old, who flourished between 860 
and 936, was the first to extend his authority over all Den- 
mark including Schleswig, Holstein, Skania and part of Nor- 
way. A little earlier Harold Fairhair had subdued all the 
petty kings in Norway and placed the fylkis or shires under his 
earls and the herads, (subdivision of the fylkis), under his 
lendermenn. The date and extent of the domination of the 
early Swedish kings is so interwoven with the mythical that 
it is impossible to say much with certainty. Eric, who ruled 
in the tenth century, is said to have extended his power over 
Denmark, and his son Olaf, who succeeded him in 993, was 
the first Christian king of Sweden, having been baptized about 
A.D. 1000. These were times of almost ceaseless war, and 
no compact and efficient system of government was established 
by any of them. The name of Cnut, the Dane, stands out 
prominently in history because of his conquests in England 
about 1 01 8. He extended his power over Norway also and 
into Sweden. Tradition mentions earlier rulers over the Scan- 
dinavian races, the greatest of whom was Odin, reputed a 
Scythian chief, who extended his power from his native land 
in the Russian steppes to Sweden and Norway, and introduced 
to the people the religion and institutions of his ancestors. His 
king-dom is said to have included not only all Denmark, Swe- 
den and Norway but much of the country lying along the line 
of his march from his native land. There are many points oif 
similarity in the customs of the pagan Scandinavians and those 
of the ancient Scythians, and there appears good ground for. 

1 Continental Legal History Series, Vol. 1, p. 535. 



460 EVOLUTION OF GOVERNMENTS ANID LAWS 

believing that they were carried into the north by Scythian in- 
vaders. Odin, the leader seems to have been translated into 
Odin, the god of warriors, and to have become the principal 
deity of northern nations. He and Thor, first born son of 
Odin and Frigga, were the leading deities worshipped, and 
not only animals but human beings were sacrificed to propitiate 
them. It was the fashion of northern rulers to trace descent 
from Odin and to fortify their claims to authority by the 
superstitious veneration for the supposed gods. Odin is said 
to have established his power and residence in Sweden about 
70 B.C., and the dynasty he established to have continued till 
630 A.D. The reigns of Odin and his immediate successors 
are described in the traditions as peaceful and prosperous and 
are accepted as a golden age of prosperity. Little can be told 
with any fair degree of certainty of those early times. 

The system of laws prevailing throughout the Scandinavian 
countries in the time of Cnut imposed fines, definitely fixed for 
each offense from murder down, graded according to the rank 
of the injured party. For an injury to the person of a high 
nobleman the fine was twelve times as much as in case of an 
ordinary freeman. For theft the fine was generally triple 
value olf the stolen article. The modes of trial allowed the 
accused to clear himself by the oaths of compurgators, swear- 
ing that they believed him innocent. Judicial combat was 
a recognized mode of trial, as were those by ordeal of fire 
or water. Trial by jury was also allowed. 

On the death of Cnut his dominions were divided between 
his three sons. The history of the following century is filled 
with the wars of rival claimants of kingly power. While these 
claimants fought, Wendish pirates pillaged the people, who for 
their protection entered into an association for their mutual 
defense, built ships, manned them and captured many of the 
pirates. Here was the spectacle of war and discord among 
princes and an assumption olf the function of protecting them- 
selves from external foes by the people. After long and deso- 
lating civil war Valdemar overcame his rivals. Prior to his 
reign all freemen had been permitted to come to the national 



DENMARK, SWEDEN AND NORWAY 461 

council armed, but in his time the clergy and the nobles took 
away this privilege, and the peasantry of Denmark and Sweden 
lost most of their political rights. 

Valdemar II of Denmark made conquests in the east but was 
unable to hold them, and the city of Lubec succeeded in freeing 
itself from his rule. After the loss of much of his foreign 
possessions Valdemar caused a general survey to the made of 
his kingdom. The provinces were divided into Episcopal dio- 
ceses, which were subdivided into parishes and small districts, 
from each of which a fixed contribution of men and ships for 
the defense of the country was required. To remedy the con- 
fusion in the law occasioned by the charters of cities, by which 
they had been granted the right to administer the law in 
their own courts, the royal guilds, the claims of the clergy of 
exemption from secular power and the study of the Roman 
civil law, Valdemar convened in 1240 a national assembly, at 
which was promulgated what was intended as a code of laws 
for the whole kingdom, called the Jutland law. By this time 
feudalism had made its way into Denmark, the local assemblies 
of freemen were no longer held, but were superseded by the 
A del-Ting or Herredag, an assembly to which only the princes, 
prelates and nobility were admitted. The peasantry had been 
generally compelled to place themselves under some feudal lord 
and thereby lose their independence. The national diet was 
convened annually at Nyborg. During its recess the govern- 
ment was administered by the king and his council, composed 
of the leading nobles and officers of the kingdom. The marked 
change which had occurred consisted in the development of a 
class of land holding nobles, who shared political power with 
the king to the exclusion of the great body of the freemen 
who formerly met in the Lands Ting. 

On the death of Valdemar II Eric succeeded and fought 
with his brothers who refused homage for their fiefs, and 
then led an expedition into Esthonia : on returning from which 
he was assassinated. Christopher's reign was noted for a 
controversy with the church, resulting in an interdict against 
his kingdom for seizure and imprisonment of the bishop of 
Lund. Eric VII, Grippling, had bloody wars, in which many 



462 EVOLUTION OF GOVERNMENTS AND LAWS 

of his subjects perished in a contest with the duke of Schleswig 
and his allies over the possession of the crown, followed by 
further controversy with the church over the right to control 
appointments to clerical offices, and was at last murdered in 
his chamber (1287). During his reign the nobles extorted 
from him a charter defining their privileges and the limits olf 
royal authority, which thereafter was renewed by succeeding 
monarchs. He also granted charters to several towns and 
made general regulations for municipal bodies. Eric VIII 
warred with Norway, where the murderer of his father re- 
ceived protection, and the controversy with the papal power 
was renewed. Then followed a barbarous warfare with his 
younger brother over his right to certain fiefs. 

Christopher II on his election by the diet in 13 19 was re- 
quired to sign a declaration; That the bishops and all other 
members of the Holy Church should freely enjoy their rights 
and liberties, property and vassals, as formerly, and should be 
entirely exempted from taxes and the secular jurisdiction: 
That no ecclesiastical person should be arrested, exiled or 
deprived of his goods, without the Pope's bull, if a bishop, 
and if an inferior clerk, only by the regular sentence of his 
canonical judge: That the chiefs should have feudal juris- 
diction over their estates to the extent of amercing in small 
penalties according to the custom of each province, and that 
the king should not make war without the advice and consent 
of the prelate and principal men of the kingdom: That the 
burghers should enjoy their freedom and not be subject to 
any new toll or tax without consent of the diet: That the 
merchants should be repaid the sums borrowed from them 
by the king or his bailiffs : That no impost should be laid 
on the free peasantry contrary to the established laws and 
customs : That a parliament should be held annually at 
Viborg: That no man should be imprisoned or deprived of 
life or property without public trial and conviction before the 
proper courts and with the right of appeal to the highest trib- 
unal: That plundering shipwrecked vessels should be pun- 
ished: That no law should be enacted except by parliament, 
and that the king alone, with the advice of the nobles and pre- 



DENMARK, SWEDEN AND NORWAY 463 

lates, should have power to change the above rules. Christo- 
pher lavished - grants of lands on his favorites. He was 
rewarded for his generosity with revolts and driven from his 
kingdom, which he vainly ifought to recover and died after 
fourteen years of turmoil. The king had lost his power. The 
turbulent feudal lords and the rising towns of the Hanseatic 
league dominated the country. His death was followed by a 
period of turmoil. Valdemar IV, who after some delay was 
elected king, had both civil and foreign wars which brought 
misery on the people. 

During the period we have just considered the course of 
events in Norway was far from peaceful. Sverre in 1202 
after a long struggle took the throne from the youthful Mag- 
nus V. Having gained the crown by the sword, he had to 
fight to keep it. Having incurred the displeasure of the Pope, 
his kingdom was laid under an interdict. He died after twen- 
ty-five years of strife. After three brief reigns came that of 
Hakon, who also had to fight to maintain his authority. His 
last important undertaking was a disastrous expedition to Scot- 
land. Magnus VI became king in 1263. He granted charters 
to Bergen and Trondheim and made regulations for their mu- 
nicipal affairs, trade guilds and fraternities. He also compiled 
a general code of civil and criminal laws, which was accepted' 
by the people assembled in the Gula Ting in 1274. It provided 
for an annual Law Ting at each chief town of the kingdom, 
presided over by a judge and attended by a panel of jurors. 
Trial by battle and ordeal had already been abolished, and two 
witnesses were required to establish a crime. Compurgators 
were still allowed. The kingdom was again divided, as for- 
merly, into marine districts, each of which was required to 
furnish its quota of men and ships. Beacon stations were 
established on the heights, by which signals could be passed 
from point to point in case of invasion. Erik married the 
daughter of Alex III of Scotland, and involved his country in 
a fierce and profitless war with the Danes in defense of the 
murderers of Eric Grippling. Hakon made war on the king 
of Sweden to avenge the murder of his son-in-law. As a result 
Magnus Senek was placed on the Swedish throne and after- 
ward succeeded to that oif Norway also. 



464 EVOLUTION OF GOVERNMENTS AND LAWS 

In Sweden slavery was abolished by King Magnus in 1335. 
Margaret was chosen their first queen by the Danes and Nor- 
wegians. War followed with Albert of Sweden, and he was 
taken prisoner. In 1397 there was assembled at Calmar dele- 
gates from the diets of Denmark, Sweden and Norway, who 
joined in choosing Eric king of the three countries. Articles 
of union were agreed on, by which the three countries became 
united under the same sovereign and his male issue, choice of 
sons to be made by the representatives of the kingdoms, but 
each kingdom was to be governed by its own laws. The Han- 
seatic league, then flourishing, was confirmed in its privileges 
in the towns of the three kingdoms. Eric entered into war 
over Schleswig, which at length involved the German emperor 
and the intervention of the Pope. He made a pilgrimage to 
the Holy Land, leaving his wife as regent. He had wars with 
the Hanse towns, which wasted the country and finally resulted 
in a treaty confirming the commercial privileges of the league. 
The Swedes rebelled against Eric's misrule and civil war fol- 
lowed, which was terminated through the intercession of the 
bishops, who this time were peacemakers. Eric provoked re- 
volt and war again ensued, followed by another congress at 
Calmar, at which the election off a successor to the throne was 
confided to a college of one hundred and twenty delegates, 
forty from each state, to include representatives of the pre- 
lates, judges, burgomasters and free peasants. Complaints 
against Eric's rule finally resulted in the choice of Christopher 
as his successor, and Eric became a pirate. 

The peasants of Jutland revolted against the high taxes and 
oppression of the nobles, but their resistance was overcome in 
the usual manner. Christopher made unsuccessful war on the 
Hanse towns. Christian was chosen king by the Danish nobles 
and then by the Norwegians, but Knutson was named by the 
Swedes, each acting separately. War followed ; Knutson was 
defeated and driven out and Christian recognized as king of 
Sweden. Another revolt headed by the archbishop of Upsala 
again placed Knutson on the throne, from which he was again 
deposed. On his death Sten Sture received the support of the 
national diet otf Sweden and defeated the Danes in a great 



DENMARK, SWEDEN AND NORWAY 465 

battle. In 1478 the university of Copenhagen was founded 
and that of Upsala in Sweden soon afterward. 

John, having been chosen by the Danes and Norwegians, 
invaded Sweden to enforce submission there and finally ob- 
tained their recognition. In an attempt to subjugate Deth- 
marsehen he met with a signal defeat by the free peasants, in 
which great numbers of the Danish nobles were killed. Re- 
volts again occurred in Sweden, and his authority was resisted 
during the balance of his reign. Norway also rebelled but was 
reduced to submission. In his contests with the Swedes and 
their allies, the Hanse towns, the war degenerated into pil- 
laging expeditions. The barbarity exhibited was extreme. 
Christian II came to the throne in 1573. The Swedes resisted 
his authority, and he called to his aid the clergy and the sol- 
diers. Under the name of authority and religion the grossest 
barbarities were committed. Having overcome the opposition, 
partly by force and partly by promise, he was crowned at 
Stockholm. At the close of the court festivals he seized the 
leaders who had opposed him, and to whom he had solemnly 
promised amnesty, and on the demand of a churchman for 
justice against his enemies he turned them over to an ecclesias- 
tical court for trial. They were condemned the next day, and 
on the pretense that he as king could not shield them from 
punishment for heresy, on Nov. 8th, 1520 a great number of 
the leading men of the kingdom were butchered. The Pope's 
agent was encouraged in his trade of selling indulgences, from 
which he realized large sums from all factions. 

Gustavus Vasa, son of one of the murdered men, after wan- 
dering from place to place took refuge with the poor but free 
Dalecarlian mountaineers, whom he incited to a revolt which 
gained in force till with the aid oif the Hanseatic League the 
Danes were driven from Sweden. In Denmark Christian ex- 
cited the hostility of the nobles by forbidding the sale of serfs 
and allowing them to change their masters, by prohibiting 
wreckers from seizing shipwrecked goods and in lieu appoint- 
ing bailiffs to save and return them to the owners on payment 
of salvage. The nobles revolted and Christian left the king- 
dom. Gustavus Vasa was then elected to the throne of Sweden 
by the diet and became the founder of a famous dynasty. 



466 EVOLUTION OF GOVERNMENTS ANID LAWS 

Frederick succeeded to the thrones of Denmark and Nor- 
way. Alfter a time the dethroned Christian succeeded in 
raising a revolt in Norway and involving the people in war, 
but he was taken prisoner and spent the next twelve years of 
his life in a dungeon of the castle of Sonderborg, and then 
was removed to that of Kallundborg. Christian III came to 
the Danish and Norweigan throne in 1533. The reformation 
took early hold in Denmark, and religious strife, revolts of the 
peasantry and many other internal disorders occurred. Chris- 
tian adopted the reformed faith, took away all temporal power 
from the clergy and confiscated the church property. The 
blow at the clergy was accompanied by a confirmation of the 
privileges of the lay nobility. Sweden also threw off its sub- 
mission to the sway of the clergy and took side with Luther. 
Under Gustavus Vasa Sweden enjoyed a degree of peace and 
prosperity it had not known /for many generations. He died in 
1560 and was succeeded by Eric his son. His rule was in 
striking contrast to that of his father. He was fickle, wasteful 
and plunged into needless wars at home and abroad, 'from 
which the people suffered more than the usual miseries. At 
last they rose, deposed him and elected John in his place in 
1568, who had war with Denmark and with Russia, from 
which no good resulted. Frederick II of Denmark made cruel 
war on the valiant Dithmarschen peasants, whom he attacked 
with an overwhelming force and ruthlessly slaughtered. Then 
followed long and wasting war with Sweden, the pretext for 
which was the wearing by the Danish monarch in his coat of 
arms of the triple crown, implying sovereignty over Sweden, 
the independence of which had been established. The war 
ended with the loss of his crown by Eric of Sweden. The 
peace negotiated with King John did not last and more fight- 
ing followed till, weary off war, a new treaty was made. 
Frederick was a Lutheran and persecuted all of other faiths 
with the zeal and intolerance which characterized the times. 
Sigmund, son of John of Sweden, having been chosen King of 
Poland, succeeded on the death of his father to that of Swe- 
den. He was a Catholic and his subjects Protestants. Duke 
Charles, son of Gustavus Vasa, was made regent. Religious 



I 



DENMARK, SWEDEN AND NORWAY 467 



differences resulted in civil war. Sigmund was deposed and 
Charles made king. 

Christian IV ascended the Danish throne at the age of 
twelve. After reaching his majority he took an active interest 
in promoting good government, especially in Norway, and 
made a voyage around the north cape into the White Sea. 
Then disputes with Charles of Sweden and war followed, 
which was continued after the death of Charles by his son, 
Gustavus Adolphus. After great suffering by both parties a 
peace was concluded. Gustavus waged successful war against 
Poland, in which he gained great glory and great numbers of 
his people lost their lives. At a meeting of the Saxon states 
at Lauenburg in 1625, while the Thirty Years' war was in 
progress, Gustavus was chosen captain general of the confed- 
erate army of Danes, Germans, Scotch, English and Swedes. 
His brilliant career in that memorable war ended with his life 
in 1632 on the hard fought field of Lutzen. As a result of this 
war the power and territory of Sweden were greatly increased, 
though at a fearful cost of life and property to the people. 

In Denmark power and landed property had steadily cen- 
tered in the hands of a few, till the national assembly was no 
longer convened, and a few great lords dominated in the coun- 
cils of the state. In 1660 Frederick convened the national diet, 
to which the nobles, the clergy and deputies from the towns 
were summoned, but there was no longer a free peasantry to 
be called. Norway was not called on for representatives. At 
this diet the crown was made hereditary, and the king absolved 
from the ancient limitations of his authority in favor of the 
nobility. The great lords were forced to swear ifealty to the 
hereditary and unlimited monarch. This was one of the most 
remarkable revolutions in history and completely changed the 
character of the Danish government, from one in which each 
king had been forced at his accession to power to swear to 
observe the very extensive privileges of the nobility, leaving 
him little more than a nominal ruler, to an absolute monarchy 
in which the king engrossed all executive, legislative and ju- 
dicial powers and was raised above the law, save that the order 
of succession to the throne, which the king was authorized to 



468 EVOLUTION OF GOVERNMENTS ANiD LAWS 

establish, could not thereafter be changed. This gave to the 
king power to crush the great nobles, whose counsel he was no 
longer required to take, and to fill all offices with persons of 
his own selection, devoted to his interests. The motive for the 
change influencing the clergy and lower orders in the diet was 
to obtain relief from the tyranny of the oligarchy, who were 
exempt from public burdens while owning a great share olf the 
land. The union of the multitude in support of a single head 
of the state in order to overthrow an obnoxious oligarchy is 
not unprecedented, but no other instance is recalled where 
absolute hereditary power has been deliberately conferred in a 
time of peace. Christian V, soon after coming to the Danish 
throne, took advantage of the war in which Charles XI of 
Sweden had engaged with the elector of Brandenburg to attack 
the now most dreaded foe of Denmark. The Danes and their 
allies were at first successful by sea and land, but the youthful 
Charles at last took the field and defeated them. After many 
battles with varying fortunes a peace was concluded, which 
left both parties with the same possessions as at the beginning 
of the war. 

In Sweden Charles convoked a diet in 1680 for the purpose 
of remodeling the government, as a result of which a new 
board, called the Grand Commission, was established with 
power to inquire into the transactions of the ministers and pun- 
ish the usurpations of the senators. Steps were also taken to 
recover grants of royal domains from the great nobles, to 
whom they had passed by grant or mortgage, on repayment 
of the original price paid the crown for them. Another diet, 
convened the following year, gave the king authority to change 
the constitution. This change was promoted by the same in- 
fluences as those which changed the Danish constitution. In 
1693 an act was passed which in terms made the king absolute 
and authorized him to govern the realm according to his will 
and pleasure without being accountable to any earthly power. 

Charles XII, 1697, was a minor of fifteen years at his 
father's death, but notwithstanding the will of his father, 
which extended his minority to eighteen, in six months he 
assumed the exercise of the unlimited kingly powers. He was 



DENMARK, SWEDEN AND NORWAY 469 

soon involved in war with a combination formed by Denmark, 
Saxony and Prussia. He met this formidable array with such 
marvelous courage, energy and success, as to challenge the 
admiration of all Europe and raise him to the first rank of 
military heroes. Not waiting for the allies to combine their 
forces, he at once assumed the offensive, attacked and crushed 
Denmark first, then sailed over the Baltic, landed at Pernau 
on the Gulf of Riga, attacked the poorly equipped and undisci- 
plined Russians and destroyed army after army, far exceeding 
his own in numbers. Having disposed of the Russian armies, 
he turned upon the Saxons and passing through Lithuania he 
entered Poland, took Warsaw and Cracow, deposed the Saxon 
Augustus and caused the election of Stanislaus in his place. 
Thence he marched into Saxony and the imperial domains. 
Augustus was forced to sue for peace and make such terms as 
the victorious Charles saw fit to impose. These required the 
renunciation of the crown of Poland and the abrogation of 
his treaty with the Czar. After resting a while in Saxony, 
during which he drilled and perfected his army, Charles en- 
tered on the task of invading Russia and overthrowing the 
Czar. Peter had not been idle, but had profited by the bitter 
experience of former defeats and devoted his attention to the 
improvement of his army. Charles advanced but encountered 
stubborn resistance and an exceptionally severe Russian winter. 
Instead of pushing on toward Moscow, he turned to the south 
and passed through the Ukraine to join iforces with the Cos- 
sack chief, Mazeppa, whom he expected to join him with a 
force of 30,000. Instead of Cossacks he was met by Russians. 
After suffering heavy losses from the severity of the weather 
and the want of supplies, as well as from frequent engage- 
ments, in the summer of 1709 he again attempted to force his 
way to Moscow with the remnant of his once splendid army. 
Peter met him at Pultowa on July 8 with 70,000 men, and, 
though he fought obstinately, overwhelming numbers decided 
the day and the Swede's army was destroyed. With a small 
band of horsemen Charles made his escape into the Turkish 
domains, where he remained, supported by an allowance (from 
the sultan, whom he sought to induce to raise an army with 



47o EVOLUTION OF GOVERNMENTS AND LAWS 

which to renew the contest. Having played the role of a 
most troublesome guest to the Turks till Oct. 171 4, Charles, in 
company with only two officers, started back to the north, 
reaching Stralsund safely on Nov. 21, He was most enthu- 
siastically received by the army, but his presence was not 
sufficient to enable the small Swedish garrison to resist the 
combined besieging army of Danes and Prussians. He suc- 
ceeded in escaping in a boat, just as the town capitulated, and 
made his way across the Baltic into Sweden. Still bent on con- 
quest, he raised a new army, with which he invaded Norway. 
On his second invasion of that country at the siege of Fred- 
erickhall on Dec. 11, 1718, he was struck by a ball and killed. 
The career of Charles affords a striking example of the mis- 
fortune it is to a kingdom to have a great military hero ! for a 
king. It also illustrates the strange infatuation, which causes 
the multitude to applaud and follow a leader who marches them 
to destruction, so long as he succeeds in gaining battles and in- 
flicting greater misery on his enemies than his own troops 
suffer. Had Charles been content to make peace after his early 
wars, which though carried on in the enemies' country were 
really defensive, he might have claimed to be a protector of 
his people, but his insane thirst ifor conquest caused him to 
drain his country of men, to be killed or maimed in war or sold 
into slavery as prisoners. His early campaigns brought booty 
and wealth, but loss, disaster and poverty alone resulted from 
the later ones. The great mass of men who followed him to 
his wars never returned but met death or slavery. The people 
at home endured the misery of the loss of friends, the sharp 
pinch of poverty and distress resulting from the destruction 
of war. Like the barbarous idol worshippers, the Swedes 
continued to worship their hero and to furnish him victims 
by tens of thousands. Rejoicing in the early days of success in 
the destruction and misery he and his followers caused others, 
they at last felt a (full measure of it themselves. This is in 
the very nature of war, yet savage man still worships the war 
god in Christian churches, as well as in pagan grove or temple, 
and still immolates on his altar the bravest and strongest of 
the youths, leaving the perpetuation of the race to those physi- 



DENMARK, SWEDEN AND NORWAY 47i 

cally weaker and less courageous. By this system the race of 
the peaceful, though weak and defective, is preserved and 
propagated, while the more warlike element is destroyed. 

Ulrica, younger sister of Charles, was chosen by the states 
to be his successor, but she was required to renounce all claims 
to despotic power and all hereditary right to the crown. A new 
constitution in forty articles was framed, which provided 
among other things; that all offices of trust or profit should 
be filled by the native nobility; that all taxes should be ap- 
proved by the assembly ; that the senate should manage public 
affairs in the absence of the sovereign and in case of a vacancy, 
and that cities and towns were to be confirmed in their corpor- 
ate rights. This constitution was accepted by the queen. The 
policy of the new reign was to make peace, and this after some 
delay was accomplished, but with large concessions off territory 
to Russia. Ulrica soon abdicated and asked the election of her 
husband Frederick in her stead. This was done in 1 720 with 
a further extension of the guarantees of the constitution. The 
king might propose laws, but the legislative power was vested 
in the states. Sweden enjoyed the blessings of peace till 1741, 
when bad counsel prevailed in the diet, and war was again 
declared against Russia. In the campaign which followed the 
advantage was with the Russians, and the Swedes lost Finland 
as the price of peace. For blood and treasure wasted there was 
no return but humiliation. 

In Frederick IV, Christian VI and Frederick V, Denmark 
found peaceful rulers, who devoted their energies to the im- 
provement of the condition of their subjects, but were yet 
without power, and perhaps lacking in disposition, to do justice 
to the peasants and poor, who still submitted to the grinding 
oppression of the nobles. 

Sweden again became involved in war with Frederick of 
Prussia, 1755 to 1762, but the drain of men and resources 
was not so severe as in her former greater struggles. Gust- 
avus III ascended the throne of Sweden in 1771. He delayed 
his coronation until he could make sure of the fidelity of the 
soldiers, when he threw off the mask and refused to recognize 
the constitution, under which his predecessor had been sub- 



472 EVOLUTION OF GOVERNMENTS AND LAWS 

jected to the dictation of the nobility, and assumed dictatorial 
power. The diet was summoned, and with the army at his 
back Gustavus dictated terms to them and required the mem- 
bers to swear to support his constitution, which contained 
fifty-seven articles and placed all executive power in the king. 
The diet was still retained, composed of the four orders, but 
the king ceased to be dependent on its will. 

Christian VII, a weak, narrow minded, dissolute son of a 
very worthy man, who had been a good king, came to the 
Danish throne in 1766. His accession was but another illus- 
tration of the evil of transmitting power by inheritance, and of 
the certainty that good men will sometimes have bad sons. 
Christian traveled abroad and brought home favorites, chief 
among whom was Struensee, whom the king found practising 
medicine at Altona and took into such favor that he soon ap- 
pointed him prime minister. His success in also gaining the 
confidence olf the young queen led to his destruction. He was 
arrested and tried, if a proceeding before a commission of his 
bitter enemies who instigated the prosecution can be dignified 
by that name, and condemned to death, which was inflicted in 
1772. From this time till 1784, when the king's son Frederick 
was associated with him and became the actual ruler, the queen 
dowager administered the government, though in Christian's 
name. The young prince displayed unexpected talents and vir- 
tues. Through the stormy period of the French revolution 
and the ensuing wars he succeeded in maintaining peace till 
1 801, when, having joined Russia and Sweden in an alliance 
to protect their commerce on the seas against searches and 
seizures by Great Britain, the Danish fleet was defeated before 
Copenhagen with heavy loss of men and ships. This defeat 
was followed by a disruption of the coalition and a change of 
policy hostile to France. In Sweden Gustavus III proceeded to 
rule without summoning the diet, till impelled to do so in 
1772 in consequence of a memorial of the nobles. He merely 
made them a speech and dissolved the diet. In 1787 he joined 
the Turks in waging war on Russia, but officers and men re- 
fused to go out of the kingdom to wage an offensive war, 
which the national diet had not sanctioned, and his expedition 



DENMARK, SWEDEN AND NORWAY 473 

into Finland ifailed. The diet was afterward convened, and 
Gustavus proposed a change in the constitution, conferring on 
the king the power to declare war and make peace. To this 
the clergy, burghers and peasant orders assented, but the 
nobles opposed it. Thereupon Gustavus caused the arrest of 
the refractory nobles, recognized Levenhaupt, president of the 
nobility, as authorized to give assent on their behalf, and he 
having affixed his signature to the act, it was treated as duly 
concurred in by all the orders. The king then abolished the 
senate and in its place appointed a council divided into two 
departments, one composed of six nobles and six commoners 
constituted the supreme judicial tribunal, the other of eight 
nobles and four commoners had cognizance of minor matters. 
The war with Russia was resumed and several bloody battles 
followed, but on the conclusion of peace in 1790, each party 
was left with the same territory as before the war. Neither 
party had gained, but both had suffered fiom the struggle. 
With a view to obtain supplies for an invasion of France, 
Gustavus summoned a diet to meet in 1 792 at Gefle on the Gulf 
of Bothnia. With a sufficient military force to overawe all 
opposition he succeeded in obtaining what an exhausted coun- 
try could furnish. Shortly thereafter he was assassinated at a 
masked ball. His brother became regent and ruled in peace 
during the minority of his son, who mounted the throne as 
Gustavus IV. Gustavus conceived a bitter hostility to Napo- 
leon, early joined the British in the coalition against him and 
persisted in his warlike attitude when Russia and Prussia had 
concluded peace. His obstinacy carried him so far as to cause 
a rupture with Russia and Denmark. He attempted an inva- 
sion of Norway but was driven out and in 1809 was deposed. 
Charles XIII concluded peace with Russia, abandoning all 
Finland. In 1810 the French Marshal Bernadotte was named 
as successor to the Swedish throne, and in 181 3 he started with 
20,000 Swedes to join the allies against Napoleon and his ally 
Denmark and compelled the latter to cede Norway to Sweden. 
He then invaded Norway and forced the unwilling people to 
submit to Swedish authority. The Danes, having been on the 
losing side, were forced to submit to the permanent loss of 



474 EVOLUTION OF GOVERNMENTS AND LAWS 

Norway and ceased to be a prominent power. The duchies of 
Schleswig and Holstein at all times occupied a relation to the 
Danish crown different from that of other provinces and had 
been the cause of many wars. In 1848 there was war with 
Prussia over these dutchies, and the peace of 1850 confirmed 
the possession of Denmark, but in 1864 they were taken from 
the Danes by the combined forces of Austria and Prussia and 
thereafter retained by Prussia. 

The modern constitution of Denmark was drawn lip by an 
assembly elected for that purpose in 1849 and ratified by King 
Frederick VII in 1850. It provided for a diet of two houses, 
both elective. The first, called the Folksthing, deals with the 
budget and general affairs, and is composed of one member for 
every 16,000 people, elected for a term of three years. The 
second chamber, called the Landsthing, under the revision of 
1866 consists of sixty-six members, twelve oif whom are 
named by the king, and the others are elected for terms of 
eight years by districts. Its functions are confined to local 
matters. The king is the executive head and is assisted by a 
privy council. In its educational system Denmark takes high 
rank. It is directed by a royal commission, composed of a 
president and four assessors, who appoint the professors at the 
university of Copenhagen and all teachers of grammar schools. 
Attendance at the schools is compulsory, and nearly all can 
read and write. Lutheran is the religion of State and con- 
firmation is compulsory. Denmark is still afflicted with class 
distinctions and an hereditary aristocracy with an undue share 
of wealth and exemption from taxes and burdens. The per- 
petuation of the aristocratic class is fortified by the law oif 
primogeniture, and other traces of the feudal system still abide 
there. On the whole, however, Denmark has gained far more 
in the last century from a more useful government than it did 
from a more powerful one in former years. 

The union of Norway and Sweden was recognized by the 
congress of Vienna in 181 4 and maintained till the peaceful 
separation in 1905. Since the fall of Napoleon, Sweden and 
Norway, so long given over to almost ceaseless warifare, have 
enjoyed a long period of peace and growing prosperity. The 



DENMARK, SWEDEN AND NORWAY 475 

two countries were united under one king in accordance with 
the Riksact of 1815, which left each free from the other as 
to all internal affairs, their foreign relations only being joint; 
both being under the same king, as executive head, and bound 
to defend each other in case of war. Bernadotte ruled Sweden 
and Norway under the style of Charles XIV from 18 18 till 
1844. He devoted much of his energy to internal improve- 
ments and those useful duties, which tend to the comfort and 
happiness of the people instead of their destruction. No ma- 
terial change was effected in the internal constitution olf Swe- 
den, either on its union with Norway or during his reign. In 
1866 the constitution was amended and a diet established, con- 
sisting of two chambers, one elected for nine years by the 
provincial assemblies and towns, and the other for three years 
by vote of all natives possessing the required property quali- 
fication. The executive power is vested in the king, acting 
under the advice of a council of ministers, who are responsible 
to the diet. Legislation may be initiated either by the king or 
the diet, but must be concurred in by both. The council of 
state consists of ten members, seven of whom are respectively 
the heads of the several departments of justice, foreign affairs, 
army, navy, internal affairs, finance and ecclesiastical and 
school affairs. The Riksdag annually appoints a board to ex- 
amine the record of the proceedings of the council and with 
power to indict them before the Rikratt. The Riksdag meets 
annually. To be eligible to the upper house a person must be 
thirty-five years old, own land worth 80,000 crowns or have 
paid taxes on an annual income olf 1000 crowns. Members of 
the upper house serve without pay, but members of the lower 
house receive 1200 crowns per year, and are chosen by voters 
possessed of a property qualification of the value of 1000 
crowns or farm lands worth 6000 crowns, or who pay taxes 
on an income of 800 crowns. All electors are eligible to the 
lower house. Sweden is divided into twenty-four counties 
with representative local governments, which levy local taxes 
and regulate local affairs. The judicial system consists of 
courts of three grades. 1. The haradsratter consisting of a 
judge and seven to twelve assessors elected by the people, in 



476 EVOLUTION OF GOVERNMENTS AND LAWS 

which the assessors, if unanimous, may decide contrary to the 
opinion of the judge. In the towns there are radhusratter, 
boards of magistrates. 2. Three ho f ratter (higher courts) in 
Stockholm, Jonkoping and Christanstad and 3. the Supreme 
Royal Court, two members of which attend sessions of the 
council when questions of law are settled. Jury trials are not 
allowed except in cases relating to the liberty of the press. 
The educational system is of a high order. Attendance of 
the schools is compulsory. The' universities of Upsala and 
Lund are flourishing institutions of high rank. 

On the acceptance of the union of Norway with Sweden by 
the Storthing, the Norwegian representative assembly, the king 
sanctioned the constitution made at Eidwald on May 17, 18 14, 
and promised that no change in it should be made without the 
consent of the Storthing. The fundamental law of Norway 
consists of 1 12 articles and made it an hereditary constitutional 
monarchy with the same king and the same rules of succession 
as those of Sweden. The constitution required the king to 
take the following oath before the Storthing: "I promise and 
depose that I will govern the kingdom of Norway conformable 
to its constitution and laws, so help me God and His holy 
writ." The cabinet is to consist of Norwegians only, who 
"shall carry on the government in the name and on behelf of 
the king," three of whom shall constantly attend the king 
while in Sweden. The ministry are accountable to the Storth- 
ing. The organization of the Stro thing is peculiar. It is di- 
vided into two bodies, a Lagting and an Odelsting. The mem- 
bers of both are elected by districts merely as members of the 
Storthing, and the whole body selects from its members one- 
fourth its number, who constitute the Lagting, the other three 
fourths constituting the Odelsting. All bills are first intro- 
duced in the Odelsting by a member or a minister. If passed, 
a bill goes to the Lagting, which may concur or reject it. In 
case olf a rejection by the Lagting it is again considered and if 
again passed with or without amendments it is once more sub- 
mitted to the Lagting. If then rejected it is considered by the 
whole Storthing, sitting as one body, a two third vote being 
required to pass it. When passed the act went to the king, 



DENMARK, SWEDEN AND NORWAY 477 

who signed if he approved it, and suspended if he disapproved. 
If a bill had been passed without amendment by three regular 
Storthings elected successively, during sessions separated by 
at least two intervening regular sessions, it became a law 
without the king's sanction. Appropriation bills were not 
subject to the king's veto. 

The democratic character of the Storthing was well tested, 
when the hereditary nobility was abolished by an act pro- 
posed in 181 5 and finally passed in 1824 under the provisions 
of the constitution, without the king's sanction and over his 
opposition and repeated objection. The people of Norway 
escaped the blight of the feudal system. The peasants have 
always been free, and their tenure of land has been that of 
absolute owners. The lowest court in Norway is that of mu- 
tual agreements, held once a month in every parish by a com- 
missioner elected by the householders. Next is the sorens- 
krior which sits quarterly and has jurisdiction of both civil 
and criminal causes. The entire kingdom is divided into four 
provinces, eighteen amts, sixty-ifour sorenskriveries and forty- 
four fogderies. The stifts-amt court consists of three judges 
with assessors, who are stationary in the chief towns in each 
of the four grand divisions, and review the action of inferior 
courts. All cases may be carried by appeal to the Hoieste Ret 
at Christiania. A judge is liable in damages for a wrong 
decision. The system of electing members of the Storthing is 
peculiar, in that the voters choose electors who meet in each 
county and name the members. A low property qualification 
is required or a public appointment to qualify a voter. 

Norway has a good school system, ranging from generally 
attended primary schools, middle and high schools to the 
university at Christiania. The Norwegian of to-day, as his 
ancestor the viking, still sails the sea, and considering the 
number off people in the country, Norway plays a very promi- 
nent part in the carrying trade and foreign commerce of the 
world. Her people are no longer the dread and terror of the 
seas, but honest, peaceful toilers, faithfully doing their part 
of the useful labors, yet preserving their old love of liberty 
and retaining an essentially democratic state. 



4^8 EVOLUTION OF GOVERNMENTS AND LAWS 

In 1905, owing to the refusal of the King to accede, to 
the demands of Norway with reference to the foreign consular 
service, the relations of the two countries were severed peace- 
fully. King Oscar relinquished the crown of Norway on 
October 2J, and on November 18 Charles of Denmark was 
elected king of Norway and took the name of Hakon VII. 

In 1907 parliamentary suffrage was given to unmarried 
women over twenty-five years of age who pay taxes on in- 
comes of 300 kroner in the country or 400 in town and to 
married women whose husbands pay taxes on like incomes. 



CHAPTER XX 

Germany, Austria, Hungary and Poland 

The characteristics of the early German society have been 
briefly mentioned in Chapter II. The mass of the people were 
freemen, who bore arms and held as slaves prisoners of war 
and those condemned to slavery for crime. Important affairs 
were decided in assemblies of the tribe, and the authority of 
the nobles was temporary and largely dependent on the will 
of the freemen. Lands were owned in common and peri- 
odically distributed. Each village chose its own chief, and 
the heads of the hundreds and tribes were also elected by the 
freemen. The chiefs were accustomed to gather a personal 
following around them, which became the nucleus of military 
power and the starting point of established authority. In war 
the whole body of freemen constituted the army and went out 
to battle. When large numbers combined they chose their 
herzog. The Romans came in contact with the Cimbri and 
Teutons about ioo B.C. In numerous conflicts with various 
tribes thereafter they invariably found them strong and brave. 
In A.D. 6 Arminius formed a confederacy of such power that 
he was able to fall upon Varus and utterly destroy his legions. 
The Romans succeeded in establishing their authority over 
most of Austria, Hungary and along the Rhine, but were 
never able to extend their rule over interior and northern Ger- 
many. With increase in numbers and advancement in capacity 
for organization the Germans in turn drove the Romans out 
and invaded the Roman provinces. The Marcomanni tformed 
a powerful league, which the Romans under Marcus Aurelius 
fought through successive campaigns. In the fourth century 
the Goths founded a great kingdom, extending across the 
continent from the Baltic to the Black Sea. This was broken 
up by the Huns, who poured in over the Russian steppes from 
Asia. Under pressure from this invasion the Burgundians, 

479 



480 EVOLUTION OF GOVERNMENTS AND LAWS 

Vandals and Suevi moved westward, the first named taking 
the valley of the Rhone, the Vandals passing on through Gaul 
and Spain into Africa and the Suevi establishing themselves 
in Spain. The Goths under Alaric invaded Italy, seized Rome, 
and spread over Gaul and Spain. The Lombards also pushed 
southward and succeeded the Goths in the mastery of Italy. 
The Avars from the east established themselves in Hungary. 
Though these and other tribes played a most important part 
in the dismemberment of the Roman empire and established 
their authority over large districts, the most important ad- 
vances toward the organization of a great German state were 
first made by the Franks, who dwelt along the lower Rhine. 
They lived in close contact with the Romans of Gaul, with 
whom they were comparatively friendly and ifrom whom they 
borrowed notions of government. By the middle of the fifth 
century the Salian Franks, who dwelt about the mouth of the 
Rhine and along the shore of the North Sea, had an heredi- 
tary king, who ruled over a state divided into gome governed 
by grafen appointed by the king. There were no nobles but 
the officials and immediate followers of the king. The popular 
assemblies of freemen were however still the source of auth- 
ority and determined all matters of great concern. Under 
Clovis, 481 to 511, the kingdom was extended both east and 
west. 

In the Germanic portion of the kingdom authority was dele- 
gated to favorites, as grafen in the counties and herzogen over 
larger districts, to whom were given large tracts of land. 
While the kings increased the measure of their authority in 
the western portion of their dominions and gradually ceased 
to consult with the freemen of the nation, in the east the as- 
semblies of the tribes and hundreds were still held, and the 
authority of the king and his officers was kept in check. 
Through the ownership of land and the retainers by whom 
they were surrounded, the grafen and herzogen gradually ex- 
tended their power over the freemen and shook off the re- 
straints of the king, till under the impotent Merovings all real 
authority was in their hands. 

Under the more vigorous sway of the mayors of the palace, 



GERMANY, AUSTRIA, HUNGARY AND POLAND 481 

Pepin and Charles Martel, the central power was restored to 
some extent, and under Charlemagne a more thorough and 
efficient system was established. The authority of the Merov- 
ings was never established over the whole of Germany. The 
Saxons and many others repeatedly repudiated it. They pre- 
served their free tribal system and refused to accept Christi- 
anity down to the time of Charlemagne. The Saxons refused 
to confer on their chiefs authority to bind them by treaties. 
No central authority capable of speaking for all the tribes 
existed. The Bavarians also retained much of the same 
independence. 

Charlemagne extended his general system over Germany. 
Over the border counties he placed Margraves, who admin- 
istered justice in his name, collected tribute and commanded 
the border forces. Over the interior counties he placed grafen, 
who decided causes in accordance with local customs and the 
general code. Four times each year each district was visited 
by his messengers, who reported to him and carried his com- 
mands. He also founded schools in connection with the 
churches and monasteries. Under his rule, however, the li- 
berties of the freemen were curtailed, and their great assem- 
blies no longer held. The nobles only were consulted, and 
their advice was followed when it suited him. The matters 
which had before been decided by the assemblies of freemen 
were determined by his appointees, and all popular gatherings 
were discouraged. The burdens of his many wars fell heavily 
on the people, who were often compelled to serve in distant 
parts to their financial ruin as well as risk of life. From all 
on whom he conferred lands, Charles exacted an oath of 
fealty, he also required all his prelates, counts and many great 
landowners, whose titles were not received as benefices from 
him, to take a like oath. 

The feudal system developed as an accompaniment of the 
empire of the Franks. Its essence was rulership through a 
theory of land tenure, by which the relations of the different 
orders of society were based on their interest in or relation 
to the soil. The ancient Germans had not reached the concep- 
tion of absolute title to land. They regulated occupancy in 



482 EVOLUTION OF GOVERNMENTS AND LAWS 

severalty for from one to three years by the freemen of the 
tribe, but did not entertain the artificial notion of a title which 
continued through all time as an absolute property, even of 
the tribes. The Romans made no distinction in theory between 
title to land and to cattle and slaves employed in tillage. The 
feudal system came with the seizure of the lands of the Ro- 
mans and others in Gaul by the invading Franks. Dominion 
over the land and the conquered people were acquired con- 
temporaneously, and in granting local jurisdiction and mas- 
tery, whether as a mere landowner or as an agent of the 
sovereign power, Charlemagne exacted an oath of fealty. The 
high regard in which the authority of the church had come to 
be held and the fearful consequences, spiritual and temporal, 
which were believed to result from a violated oath, gave to 
the form of swearing fealty a force and value deemed of 
first importance. The object of the kings in parcelling out 
the land among feudatories was to secure their own dominion 
by the military service which their vassals were bound to 
furnish. The counts and Margraves appointed by Charle- 
magne under his vigorous rule obeyed his commands and car- 
ried out his policy, but under his weak successors the feudal 
system developed power in the local lord, who became a despot 
over those beneath him, a jealous and contentious neighbor to 
his equals and a haughty and often rebellious vassal of the 
king. On his own estate the feudal lord administered what 
had to pass for justice. The actual tillers of the soil were 
without protection as against him. The practice of building 
strong castles, within which the barons defied all authority and 
from which they issued to rob the passing merchant or to 
wage war on some neighbor, nowhere gained more ample de- 
velopment than along the Rhine, Danube and throughout Ger- 
many. Not all of the lands of Germany were held by feudal 
tenure. The village system prevailed largely in the south, 
and peasant communities with lands in common have survived 
in various parts to the present day. It would be a tedious and 
perhaps profitless task to trace the endless wars for succession 
to power and the ever changing frontiers of the German em- 
perors, who held more or less sway, according to their varying 



GERMANY, AUSTRIA, HUNGARY AND POLAND 483 

capacities and the shifting combinations of local rulers with 
which they were forced to contend. Charlemagne was 
crowned at Rome by the Pope and held real power in Italy. 
In 918 Henry, Duke of Saxony, was chosen Emperor and, 
being a capable and vigorous ruler, extended his authority 
over the whole German population and in a great battle de- 
feated the Magyars, who were the scourge of Germany at 
that time. He encouraged the building of towns for the 
traders, which were made places of defense, and at that early 
day introduced a check on the tendency of the great lords to 
draw all the freemen to their support as vassals. The towns 
steadily developed as centers of industry and trade, and their 
spirit of independence, which has never disappeared, has pro- 
foundly influenced German civilization in all succeeding ages. 
Probably this development should be attributed more to the 
genius of the people than to the policy of Henry. At Henry's 
request the nobles after his death chose his son Otto as 
his successor. He not only preserved but extended the bounds 
of the empire. He added Lombardy to his dominions and 
received the imperial crown from the hands of the Pope. 
Henceforth the German emperors assumed the title of Roman 
emperors and claimed to rule the Holy Roman empire, whether 
receiving the crown (from the Pope or not and without regard 
to the possession of real power in Italy. Otto had to contend 
with rebellious subjects. The Roman title and efforts to rule 
Italy proved a source of weakness rather than strength to his 
successors. The real governing power soon fell into the hands 
of local potentates holding large estates, or of leaders chosen 
by the people in contests with the invading Northmen, Mag- 
yars and Slavs, against whom the Emperors failed to give 
protection. We read of dukes of Saxony, Bavaria, Swabia, 
Lorraine and Franconia, whose power and influence grew as 
feudal lords. Many unprotected owners of free or allodial 
lands, being at the mercy of more powerful neighbors, chose 
to surrender their holdings to a powerful chief and take them 
back as fieifs under the protection of the feudal lord. The 
central power was without sufficient vigor to restrain the great 
lords, who levied war on one another at will. The imperial 



484 EVOLUTION OF GOVERNMENTS AND LAWS 

power ceased to be recognized as an inheritance after the ac- 
cession to the throne of Arnuld, the illegitimate son of Carl- 
man: thereafter the Emperors were elected. In 911 Conrad 
of Franconia was chosen by the nobles under the lead of Otto ; 
duke of Saxony. From that time down to the final separation 
of Austria and Germany in recent times the office was filled 
by election, but the number of electors was very limited. It 
was the choosing of an Emperor by princes -who exercised 
more real power than he. The local rulers under the titles of 
graf, herzog, Margrave, landgrave, king, elector and other 
designations of lay rulers, and the bishops, archbishops, ab- 
bots and other ecclesiastical rulers, were each subjected to 
restraining influences of varying potency according to times 
and circumstances. The kings and grand dukes, who acquired 
authority over considerable districts, were dependent for their 
military following on their feudatories. The ancient German 
idea of determining questions of war and peace in assemblies 
of freemen was never wholly obliterated, although at times 
and in places disused. Local assemblies of the inferior no- 
bility were often convoked in all parts of Germany, and ex- 
ercised the power at times of choosing their overlords and 
of deposing distasteful rulers. Feudalism effected the ex- 
clusion from the assemblies of the great mass of the people, 
but the nobility, of whom Germany has been at all times most 
prolific, never became accustomed to submit to hereditary ar- 
bitrary power. 

While in other countries it is possible to trace a govern- 
mental system maintained by changing dynasties through long 
periods of time, in Germany we trace the development of the 
civilization of a race of people maintaining the possession of 
their ancient home and often sending out conquering hordes 
to assume mastery of other lands, but never themselves at any 
time subjected either to a single foreign ruler or a firmly 
established government of their own with general power over 
the whole German people. In the earliest times of which we 
have any account, free German tribes occupied substantially all 
of modern Germany, the Netherlands, and Austria. The Ro- 
mans succeeded in imposing their authority on the southern 



GERMANY, AUSTRIA, HUNGARY AND POLAND 485 

and a little of the western part of this territory, but it was 
always a precarious dominion, and the crumbling of the 
empire first began where it came in contact with Germans. 
Except for a brief period while the Romans held Dacia — in- 
cluding modern Hungary. — the empire was bounded by the 
Danube and the Rhine, beyond which the Germanic tribes 
maintained their freedom and defended their possessions 
against all comers. They have been attacked from every 
quarter, from the west in the early days by the Romans and 
later by the French and Spanish; from the north by their 
kinsmen the Danes, Swedes and Norwegians; from the east 
by Poles and Russians in the north and the later swarms from 
Asia in the south — Huns, Avars, Magyars, Tartars and Turks. 
In the southeast Goths, classed as of German stock, and 
Avars, Huns and Turks have established successively their 
authority over Hungary and part of Austria, but the German 
stock has never been rooted out, and only in Hungary, where 
the Magyars became the dominant race, have they been forced 
to give way and allow an alien people to impose enduring do- 
minion over them. On the other hand the German Franks 
established their dominion over Gaul. The Goths, Vandals 
and Suevi overran Spain. Wave after wave of German con- 
quest swept over Italy under the names olf Goths, Lombards, 
Franks and Germans. Even Britain was colonized and mas- 
tered by the Angles and Saxons. 

The preservation of the German race and the maintenance 
of its possession of central Europe have not been due to any 
strong centralized government, nor to harmonious or con- 
certed action of the different states. The system of dividing 
inheritances equally among males has, during much of the 
time, been applied to those estates which carried also heredi- 
tary rulership, and has resulted in repeated divisions of states 
among heirs, who frequently fought with each other for the 
whole. The Franks under the Merovings suffered for cen- 
turies from the contests of the heirs of their kings for the 
inheritance. The rights of rulers great and small were the 
only rights considered, and the people were constantly called 
on to give up their lives in the struggles of vicious and cruel 



486 EVOLUTION OF GOVERNMENTS AN'D LAWS 

nobles for mastery over the land. Nothing can be more sad 
and dreary than the records of the bloody struggles brought 
on by the ambition, malice, cupidity and other evil passions of 
those invested with authority. If the accounts of wars great 
and petty, with which the pages of German history are so 
completely filled, were in fact the records of all that has been 
done by the princes and rulers, a sweeping judgment, utterly 
condemning the whole and denying all value in such govern- 
ments, might safely be pronounced, but war has always been 
the favorite topic of historians, and the doings of peace are 
mostly left without other record than their impresses on so- 
ciety and the face o)f the earth. Most prominent among the 
characteristics of German society, the good effects of which 
can be discerned in all periods of history, are the relative 
purity of domestic life, the respect accorded women and the 
equal treatment of children. No cruel theory of slavery to a 
father or husband was ever adopted. Purity and warmth of 
attachment of husbands and wives to each other and to their 
children without distinction have in all ages been eminently 
characteristic of the Germans. Though the Rhine was for 
centuries infested by its robber barons, and though wrong and 
robbery abode securely in the castles all over the land, in no 
country and among no people has there developed a more 
general and sturdy honesty than among the Germans. The 
performance olf promises and the payment of debts imply in- 
dustry, without which the ability is wanting. So the German 
people are noted for industry and thrift. This is especially 
true of the low countries, Holland and Belgium, where the 
manufacturing of fabrics and attendant foreign trade early 
developed. The strength of the German people has been and 
is moral strength. They have not until very recent times ex- 
hibited marked capacity for great combination for military 
supremacy, but have on countless fields exhibited a tenacity 
and obstinate courage which has preserved the integrity of 
their homes, where other people would have been crushed or 
enslaved. German development has been many sided. Henry 
III 1039-56 sought to reform the church, which had fallen 
into great corruption, and in 1046 he entered Rome, deposed 



GERMANY, AUSTRIA, HUNGARY AND POLAND 487 

the claimants to the papal throne and placed on it a man of 
his own selection. In 1075 Gregory III assumed powers 
never before conceded to the Pope and issued a decree for- 
bidding the clergy to marry and against investiture in clerical 
offices by laymen. In Germany half the land is said to have 
been held by the clergy, to whom it had been given by the 
sovereign, and the principal strength of the emperor was de- 
rived from the support of the churchmen attached to his in- 
terests by the feudal tie. Henry IV resisted and denied the 
power of the Pope. In return he was excommunicated and 
his subjects declared absolved from their allegiance by a papal 
bull. A long continued struggle, known as the war of the in- 
vestitures, followed, which did not end till the concordat of 
Worms, by which as a compromise it was agreed that the 
right of electing the prelate should be vested in the clergy in 
the presence of the emperor or his representative, and that 
he should invest them with the sceptre, and he resigned the 
right of investing them with ring and staff. With Henry V 
the Franconian House ended, and Lothair duke of Saxony 
was chosen. The termination of the Hohenstaulfen dynasty 
found the imperial authority reduced to a shadow. Frederick 
Barbarossa and his successors expended so much of their time 
in foreign wars, the crusade and in Italy, that the rulership in 
Germany was left almost wholly to the local princes. The 
great duchies were broken up, and the number of lords holding 
directly from the Emperor had been greatly increased. The 
imperial cities had developed into free republics. The ruling 
class in the country consisted of a large number of prelates, 
dukes, palsgraves, margraves, landgraves and counts, inferior 
in authority to the Emperor only and denying obedience to 
him. Beneath these immediate nobles were the mediate feudal 
barons with their inferior holdings. These looked down upon 
the simple freemen, who held allodial lands, whom they fre- 
quently robbed and oppressed. The great bulk oif the popula- 
tion outside the cities consisted of the peasants and serfs, 
without any share in the government and wholly at the mercy 
of the nobility. Besides the free imperial cities there were 
mediate cities, acknowledging the supremacy of the lord of 



488 EVOLUTION OF GOVERNMENTS AND LAWS 

the district. The election of the emperors, though in fact 
dictated by a few great princes, in theory required the action 
of the whole body of nobles who held by a tenure immediate 
from the Emperor. On the occurrence of the interregnum 
following the death of Conrad IV in 1254, through the influ- 
ence of Pope Urban IV the electoral college was definitely con- 
stituted of the archbishops of Mentz, Cologne and Treves, the 
houses of Mittelsbach and Saxony, the Margrave of Branden- 
burg and the King of Bohemia. Prior to this time the terri- 
tories governed by the princes were not divided among the 
heirs, as were private inheritances. This principle was now 
changed and divisions were made of the principal duchies. 

The divisions of the states resulted in that bewildering 
multitude of petty sovereignties, which baffles all attempt at 
clear description. Contemporaneous with this splitting of 
states the free cities evidenced some capacity for organiza- 
tion and combination for the common good. The Rhenish 
Confederation founded by Mainz and Worms within a year 
included seventy cities. Even more important was the Hanse- 
atic League, originating with Lubeck and Hamburg, which 
ultimately took in over eighty cities and became one of the 
great commercial powers of Europe. In 1273 Rudolph of 
Hapsburg, a petty Swabian noble, was elected Emperor and 
obtained the grant of the fiefs of Austria, Styria and Carinthia 
to his son Albert. In this manner the rule of the Hapsburgs in 
Austria was inaugurated and thereafter many Hapsburgs 
were recipients of the imperial title. 

In 1356 Charles IV promulgated what is termed the 
Golden Bull, defining the rights of the imperial electors in 
certain particulars as to which there had been uncertainty. It 
had not been settled whether all the princes of each electoral 
house were entitled to vote, nor by what rule a selection of an 
elector should be made from different branches of a family. 
This was definitely settled on the principle of primogeniture 
and a single vote to each house, thereby limiting the number 
of electors to seven, the three archbishops before mentioned, 
the King of Bohemia, the Rhenish palsgrave, the Duke of 
Saxony and the Margrave olf Brandenburg. The electors 



GERMANY, AUSTRIA, HUNGARY AND POLAND 489 

were recognized as invested with sovereign powers within their 
respective states, and their subjects were allowed to appeal to 
the imperial tribunals only in case of a refusal to administer 
justice. When the imperial authority was at a low ebb, vol- 
untary combinations of various kinds and for different pur- 
poses sprang up. The crusades developed the order of 
Teutonic knights, which became a potent force for a time. 
During the twelfth century a secret organization known as 
the Vehmgericht grew up, and continued its activity down 
through the reign of Charles IV (1347 to 1378). Its oper- 
ations much resembled those of a modern frontier vigilance 
committee in its summary administration of punishments for 
offenses against the order. It operated as a check on the arbi- 
trary power of the princes, though often used to gratiify the 
malice of members of the organization. The Hanseatic league 
grew in importance and waged successful warfare with the 
Danish king for the protection and extension of its commerce. 
The petty princes were allowed, and even encouraged, to form 
leagues among themselves for the maintenance of peace. The 
actual government of the country was divided between the 
clergy, whose influence was powerful at all times, the great 
princes, who were held in check by the feudal lords under them, 
and the free cities. In these there were struggles between the 
leading ifamilies claiming special privileges and authority and 
the trades guilds and democratic elements which sought self- 
protection. The greatest vigor was found where the brains 
of many were actively employed in public affairs. With the 
development of industry came the desire for knowledge and 
the study of the works of the Greeks and Romans. Commerce 
can flourish only in an atmosphere of order and regulated by 
recognized laws. The study of Roman law was taken up by 
the commercial cities, and its rules were followed where ap- 
plicable. The Germany of today is noted for its schools and 
the general diffusion and profundity of its learning. Com- 
paratively poor in the quality and extent of their lands, the 
Germans are perhaps the richest of all the people of the earth 
in that best possession of all, the knowledge acquired through 
past ages. The founding of its universities, which have ex- 



490 EVOLUTION OF GOVERNMENTS AND LAWS 

ercised such a potent influence on modern civilization, began 
in the fourteenth century. Among the earliest were those of 
Prague 1348, Heidelberg 1386, Wurzburg 1402, Leipsic 1409, 
Rostock 1419, Greifwald 1456, Tubingen 1477. 

The cities of Swabia formed a league for mutual protection, 
which for a time became quite potent, and entered into an 
alliance with the Swiss confederates, but the princes joined 
in a counter alliance, and in 1388 in a battle at Doffingen the 
cities were defeated and the tyranny of the petty despots be- 
came still more grinding. In the next century a similar war, 
known as the margraves war, was waged between a league 
of many cities, headed by Nuremburg, and the princes. In 
this, as in the case of the Swabian league, the advantage was 
on the side off the princes. About this time the mediate nobles, 
prelates and cities began to assert their rights through the 
medium of local diets into which they gathered. They claimed 
the right of determining questions of taxation and the pur- 
poses to which the money should be put, and also to insist on 
a regular administration of justice. These diets, composed 
of the lesser nobility holding a position intermediate between 
the peasants and the great princes, exercised a salutary check 
on the arbitrary powers of the great lords. The discovery of 
gunpowder caused a great change in the art of. warfare and 
was followed by the organization of bands of mercenary 
troops who fought for whomever would employ them. In 
1488 a Swabian confederation, in which princes, mediate no- 
bles and towns joined if or the establishment of peace, produced 
good results temporarily. 

With the advent of gunpowder and mercenaries the feudal 
tie was severed and feudalism came to an end. At the farther 
extremity of the empire the Magyars, who first appeared as 
nomads from Asia devastating the country and spreading 
terror among the Germanic people, gradually adopted settled 
habits and planted their habitations in a district which had 
been most of the time under the sovereignty of the emperors. 

Nowhere have the baneful tendencies of power long exer- 
cisesd to fall into the hands of men who disregard the pri- 
mary purpose for which the power was conferred been more 



GERMANY, AUSTRIA, HUNGARY AND POLAND 491 

clearly exhibited than in the great Roman Church. The 
humble purity and self-sacrificing spirit of Jesus were the 
foundation on which the vast power of the popes was built. 
Temporal power and revenues became the prime concern of 
those who ruled the church, and venality and immorality so 
prevalent that, instead of leading the people in the paths of 
virtue, the churches became centers of pollution. Germany, 
with its free cities, its local diets of nobles and its ancient tra- 
ditions of virtue, quickening with the light of the ancient 
world, which it had begun to study, was the natural field for 
the Reformation. In 1517 Martin Luther nailed to the church 
door in Wittenberg his famous thesis. This was not the first 
attack that had been made on the prevalent abuses, but it 
precipitated the conflict which divided the Christian world into 
hostile factions, who fought, murdered, burned and tortured 
each other with a fiendish cruelty almost inconceivable. Huss 
suffered martyrdom one hundred years before for like senti- 
ments. The immediate occasion of Luther's stand was the 
sale of indulgences by papal authority. This was a remarkable 
illustration of the prostitution of office for the gratification of 
the officials. In order to raise money to maintain the pope 
and high church officials in the splendor so incompatible with 
the teachings of the Master, the Pope sent out his agents to 
sell licenses to violate the moral law as taught by the church, 
and to grant immunity from the consequences of wrongdoing 
before the commission of the act. The purpose was to raise 
money to enable the clergy to gratify their own vices. It 
was even worse in principle than the ordinary robbery of those 
whom a ruler is bound to protect to minister to his vanity or 
sensuality, because it encouraged those whose money was taken 
under a fradulent claim of power to grant absolution in ad- 
vance, to violate the moral law and do wrong to themselves 
and to others. It was a marked exhibition of the inherent 
tendency for those who possess great power to forget the du- 
ties they have assumed and the services they owe to the multi- 
tude and pervert their offices to the gratification of their own 
lusts and selfishness. The church, with its pure and lofty mis- 
sion of leading men in the paths of virtue and brotherly iove. 



492 EVOLUTION OF GOVERNMENTS AND LAWS 

was distorted into a hideous combination of impostors, who 
encouraged the violation of the moral law by others for the 
price of sin paid to themselves. Against the power of the vast 
church organization Luther opposed the teachings of Christ 
and the moral law. The ifree cities, the local diets, the 
schools, and even the clergy, perceived the strength of his po- 
sition and the falsity of the papal claims. The* revolt against 
the false assumptions of ecclesiastical power spread with 
surprising rapidity throughout Germany. The democratic 
elements sided with Luther, and the nobility divided. The im- 
perial force naturally sided with the Pope. As in most revo- 
lutions, the scope of the issue broadened and deepened. What 
at first was merely a protest against a particular abuse became 
an attack on the assumption and exercise of a function not 
warranted by the constitution of the church. Direct account- 
ability of the individual to his Maker, instead of mediate ac- 
countability through the church, became the new doctrine. 
Real spiritual penance of the sinner, instead of money pay- 
ments or mortifications of flesh imposed by the priesthood, 
was taught by the reformers. It was a partial return to the 
democracy of the early church. Whatever forms or names 
may be assumed, there are at the bottom only two distinct and 
antagonistic principles of government, the despotic, by which 
power is exercised by the ruler for his own purposes and 
gratification, the democratic, where it is used for the good of 
the multitude. The terms are here used to express purposes, 
not forms of government. The former is essentially vicious, 
because it wrongs the many to minister to the vices of the 
few. The latter is essentially moral, because at its foundation 
there must be justice, fellowship and mutual help, even if real 
brotherly love is wanting. Many governments have seemed 
to be almost wholly despotic. None have ever been purely 
democratic in the above sense jfor any long period. The des- 
potic tendency is always present in every established system. 
Its tendency to grow has been nowhere better illustrated than 
in the Roman church. 

Naturally the despotic elements of society soon rallied to the 
support of the Pope, while the more democratic sided with 



GERMANY, AUSTRIA. HUNGARY AND POLAND 493 

Luther. This is a general statement of the situation, subject 
to many qualifications resulting from personal interests, sur- 
roundings and influences. 

Maximilian of Austria was on the imperial throne when 
Luther took his stand, but died in 15 19, and was succeeded as 
emperor by his grandson Charles V, who was also King of 
Spain, the two Sicilies, and Lord of Burgundy and the Nether- 
lands. Charles was a typical despot. In the Diet of Worms in 
1 52 1 he issued an edict denouncing Luther and placing him 
under the ban of the empire. Before his election the electors 
had exacted from Charles a promise that he would respect 
German liberties and grant reforms which had been demanded 
from Maximilian. The members of the diet became alarmed 
at the power assumed by Charles in this edict and took steps 
to impose checks on it. An administrative council was nomi- 
nated for the government o/f Germany while Charles should 
be away. The number of troops to be raised by each state 
for common purposes was also definitely settled. Charles in- 
vested his brother Ferdinand with sole authority over the 
Austrian territories and left Germany to enter on his war 
with Francis I of France. During the absence of Charles 
Ulrich von Hutten, a young nobleman, conceived the idea of 
forming a united reformed German state, and under the leader- 
ship of Francis von Seckingen a large force was gathered and 
an attack made on the elector of Treves, but the princes joined 
their forces and Seckingen was defeated and slain. The idea 
of religious liberty suggested to the peasantry a revolt against 
the grievous oppression under which they suffered, and in 
1524 they sought their rights with the aid of a few of the 
nobility. The war spread over much of southern and central 
Germany, and at first the peasants met with some success, but 
in the following year they were completely subdued and their 
condition rendered even worse than before. By these wars 
the power of the princes was augmented at the expense of the 
lesser nobility. Nevertheless the Reformation made rapid pro- 
gress and gained recruits from the various orders of society. 
Diets were held for the purpose of settling the controversy, in 
which Charles persistently sought to restore the authority of 



494 EVOLUTION OF GOVERNMENTS AND LAWiS 

the Pope, but met with stubborn resistance from the Protes- 
tants. Arbitrary power is never tolerant of criticism of its 
vices. It clings to them with more tenacity and desperation 
than to deserved authority. The sale of indulgences, the 
simony, venality and sensuality olf the clergy could not be de- 
fended by reason, and all discussion of the truth tended to 
undermine clerical power. Stern repression was therefore 
resorted to. Councils were held at Spires in 1526 and 1529, 
at the first of which the administrative council, which leaned 
toward the Reformation, granted religious freedom to each 
state, but at the one in 1829 changes in religion were forbid- 
den. In the following year a diet was held at Augsburg, at 
which the Lutherans submitted a summary of their doctrines in 
what was styled the Augsburg Confession. They declined to 
attend mass and held services of their own in defiance of the 
will of Charles. In 1532 Charles granted the peace of Nurem- 
burg, by which temporary toleration of the Augsburg Con- 
fession was allowed. The Lutheran princes and cities formed 
a league which took in most of the northern cities and princes 
and many of the cities of southern Germany. After the 
peace of Crespy, concluded with France in 1544, Charles 
turned his arms against the Protestant league and defeated 
them. He thereupon attempted to compel submission in re- 
ligious matters. He assumed arbitrary powers which no Ger- 
man Emperor since the early days had been able to wield. 
His tyranny was distasteful even to the Catholics, and Maurice 
of Saxony, who had sided with Charles in the first contests, 
now became the leader of the forces against him. Joining 
forces with Henry II of France, he compelled Charles to flee 
from Germany and sign the Peace of Passau, agreeing to 
summon a new diet, which, having met, again provided for 
religious toleration off such sort as each state might see fit to 
accord. This still left abundant room for local discord. The 
crime of heresy depended for its existence on the ascendency 
of Catholic or Protestant and concord with or dissent from 
the faith of the ruler. The atrocities perpetrated in the low- 
lands by the duke of Alva, and by Frederick II in Bohemia, 
were characteristic of a war carried on by a temporal despot 



GERMANY, AUSTRIA, HUNGARY AND POLAND 495 

to maintain the false and pernicious rule of a malignant clergy. 
Nor were the atrocities all on one side. Where they were in 
power, the Protestants were often as intolerant and bloody as 
the Catholics. The pure religion of Jesus was not in issue 
on either side, but tyranny and malice brazenly claimed re- 
ligious sanction for their fiendish atrocities. 

The Thirty Years' war devastated Germany and exhibited 
the evil that men may do, when to war's ordinary barbarities 
are added the blind fury of religious fanaticism. Though Ger- 
many was the principal field of the struggle, Spain, France, 
England and Sweden were at times involved, and, when it 
ended, France took territory on the west and Sweden from 
the north, thereby materially diminishing the German terri- 
tory. The long struggle left Catholics in the ascendant in the 
south and Protestants in the north, and the peace finally con- 
cluded at Westphalia in 1648 recognized Catholicism, Luther- 
anism and Calvinism. The imperial power had been com- 
pletely shaken of! by the Protestant citizens and princes, and 
after the peace substantially all authority passed to the diet, 
which alone had power to make laws, declare war and con- 
clude treaties in the name of Germany. Its power over the 
states was however shadowy, for they were conceded the 
right to make alliances among themselves, and even with 
foreign powers if not injurious to the empire. After 1654 
the diet became a permanent body and was made up of rep- 
resentatives of the princes and cities, but it exercised little 
authority. The real governing power lay in the local rulers 
and the governing bodies of the cities. As a result of the war 
the population was reduced from about 20,000,000 to 6,000,- 
000 or 7,000,000, and the destruction of property was in a 
still greater proportion. The once flourishing and powerful 
Hanseatic League was ruined and broken up in 1635, during 
the progress of the war. Among the worst effects of the long 
struggle was the growth of the spirit of despotism among the 
ruling class, engendered by so long a strain of war, and the 
feeling of helplessness, dependency and servility among the 
multitude. Even in the cities democratic systems were con- 
verted into powerful oligarchies or swept away by princely 



496 EVOLUTION OF GOVERNMENTS AND LAWS 

dictation. From the close of the Thirty Year's war to the 
French Revolution despotic theories of government prevailed, 
and the spirit of militarism grew. The Austrian Hapsburgs 
continued to hold the imperial title most of the time, but under 
the lead of vigorous rulers Prussia developed a rival German 
power. From the time of Urban IV, when the constitution 
of the electoral college was first settled, the Margrave olf 
Brandenberg had been one of the imperial electors, and in 
1438 the elector Frederick became a candidate for the im- 
perial throne. His successor Frederick II, 1440, 1470, vigor- 
ously asserted authority over the cities and built a castle in 
Berlin. 

In 1230 the priestly military order of Teutonic knights, 
which had been formed during the crusades, entered Prussia, 
whose people had not yet been converted to Christianity. In 
the course of a half century they subdued the country and 
received a grant of dominion over it from the emperor. Un- 
der their rule, the country, which was at their advent but 
sparsely peopled, was settled with many German colonists, 
and cities and towns were soon built. In the course of a 
century the power of the order declined, and in 1467 West 
Prussia became a fundal dependency of Poland. In 151 1 the 
Teutonic Order chose Albert, of the Franconian branch of 
the Hohenzollerns, as grand master of their order. He em- 
braced the Protestant cause and converted the lands of the 
order into a secular hereditary duchy in 1525, continuing as a 
vassal of Poland. In 161 1 this duchy fell by inheritance to 
the elector of Brandenburg, and the two districts were joined 
as one country under the Hohenzollerns. Thereafter in 1657 
under Frederick William, called the great elector, it was de- 
clared independent of Poland. In 1701 the elector Frederick 
III, with the assent of the Emperor purchased by aid in his 
wars, assumed the title of king and took the crown at Konigs- 
berg under the style of King Frederick I of Prussia. Under 
his rule Prussia made little progress and still ranked along 
with Bavaria, Saxony and Hanover as dependencies of the 
empire. His son and successor Frederick William reformed 
the finances and remodelled the army, which he brought to a 



GERMANY, AUSTRIA, HUNGARY AND POLAND 497 

high state of discipline and efficiency, so that Prussia took 
fourth rank as a military power, though only twelfth in popu- 
lation. He was a despot, but a hardworking, thoughtful and 
economical one, who labored to add strength to his state. 
With the aid of the Saxons and Danes he defeated the Swedes 
and drove them out of Pomerania. He collected taxes in 
money for the maintenance of his army and abandoned entirely 
the feudal military system. Everything was bent to strengthen 
the military establishment, which absorbed five-sevenths of 
the total revenues. Rigid discipline was imposed, not only on 
the army but on all employed in the civil service, whose duties 
were strictly defined and derelictions severely punished. The 
long and vigorous reign of Frederick II, called the great, 
1740 to 1786, witnessed the further development of the mili- 
tary despotism and increase of the territory of the kingdom 
at the expense of Austria and Poland. In his contests with 
Austria, France and Russia, Frederick gained great victories, 
but at fearful cost in human life and misery. The seven 
years' war witnessed the destruction of numerous towns and 
villages and a decrease of half a million in the population of 
the kingdom, but gave to the king the title of Great. Freder- 
ick nevertheless labored earnestly to advance the interests 
and prosperity of the country in accordance with his despotic 
ideas, and some of his innovations were real reforms. He 
completely separated the judicial from the administrative de- 
partments of government, abolished torture in trials and capi- 
tal punishment for inferior offenses, confining executions al- 
most entirely to cases of murder. He reduced the expenses 
of litigation and required that every cause be disposed of 
within a year. He undertook a codification of the law, which 
however he was not able to complete. He was a vigilant 
master over all the public servants, whom he closely watched 
and held to strict account. Himself an untiring worker, he 
exacted strict attendance to duty from his subordinates. In 
matters of religion he granted full liberty to each to go to 
heaven by any route he chose to travel and allowed full free- 
dom of discussion. The stratification of society he left un- 
changed, but allowed no authority to the diets conflicting with 



498 EVOLUTION OF GOVERNMENTS AND LAWS 

his will. His successor ruled according to the same princi- 
ples, but without the vigor or ability of Frederick. 

Austria started as a Margravate of Charlemagne and grew 
in prominence and territorial extent at times. In 1453 it was 
raised to the rank of an archduchy. The frequent choice of 
emperors 'from the ruling house of Austria gave it a marked 
prominence among the German states, and the history of the 
rulers of Austria is largely identical with that of imperial 
Germany. The Thirty Years' war and the growth of Protes- 
tantism in the north weakened the influence of Austria in 
Northern Germany, and was the entering wedge which ulti- 
mately resulted in the destruction of the empire. As a result 
of its struggles and negotiations, by 171 3 Austria had 190,000 
square miles of territory and 29,000,000. people. The reign 
of Maria Theresa, who ascended the throne in 1740 and ruled 
till 1780, witnessed great wars, including the Seven Years' 
war with Frederick of Prussia, but was a period of great 
prominence for Austria, which added still further to its terri- 
tory. Her husband Francis I was chosen Emperor (1745 to 
1765), but his imperial powers were completely overshadowed 
by those of his wife as ruler olf Austria. She was not only a 
vigorous head of the military power, but a reformer in civil 
affairs, though by despotic methods. Her son and successor 
Joseph II attempted sweeping reforms, which however he 
was unable to carry out. 

At the breaking out of the French revolution nearly every 
vestige of ancient popular government had been obliterated. 
Arbitrary power was everywhere exercised under a claim of 
divine right to rule, and backed by military force. In the 
south there was no constitutional check on the absolute power 
of the ruler of Austria, save in Hungary, and this was little 
regarded. In the north the Prussian despotism was vigor- 
ously maintained, and in the minor principalities equally arbi- 
trary and despotic maxims were followed. Yet the traditions 
of ancient liberties still survived, and the people were a 
strong and vigorous race, fitted for rapid advancement under 
favorable conditions. As a result olf the peculiar political 
organization of Germany the superior nobility, who were the 



GERMANY, AUSTRIA, HUNGARY AND POLAND 499 

real governing power, jealously guarded their social rank, 
and by their code of Fiirstenrecht valid marriages of those 
ranking as the immediate vassals of the emperor could only 
be made with those of equal rank. Offspring by marriage 
with the inferior or mediate nobility were treated as illegiti- 
mate. The hereditary political power of the margrave, duke 
or other titled prince, passed' by the rule of primogeniture, as 
did the lands held in feudal tenure from the crown, but allo- 
dial lands and personal estates were equally divided among 
the sons, or in some instances the daughters also took a share, 
sometimes less than that of a son. All the children however 
ranked as nobles of inferior degree. The inferior nobility 
were no less tenacious of their social rank than the princes. 
The rule of inheritance of rank by all the children has re- 
sulted in great multiplication of the lesser nobility, many of 
whom are exceedingly poor. Prior to the Thirty Years' war 
the petty lords wielded considerable power and political in- 
fluence through the diets, but the long struggle left them 
shorn of their importance, except as they were the holders of 
estates. As landholders they had valuable privileges. They 
were judges of all matters of dispute between tenants of their 
estates, and exempt from taxes and from having soldiers 
quartered on them. They had the right to settle tradesmen 
on their estates in opposition to the town guilds. They en- 
joyed exemption from that severity of punishment which was 
visited on offending peasants. 

The system of land tenures, prevailing at the time olf the 
French Revolution and still unchanged in many parts, ex- 
hibits many peculiarities, resulting from ancient ideas and 
conditions. The village system with many modifications was 
common throughout Germany, especially in the south and 
among the Slavonic people. Whether the land was allodial or 
held by feudal tenure under a lord, in many places all land, 
except that immediately about the dwellings, was held in 
common and subject to changing occupancy by periods of 
varying length. Pasture and woodlands were usually used 
in common, the tilled land only being divided. In other places 
the cultivated land was divided and held in severalty, but 



500 EVOLUTION OF GOVERNMENTS ANID LAWS 

without power of alienation by the owner without the consent 
of all who might be entitled to inherit it, and the balance was 
used in common. Various regulations were made with refer- 
ence to the construction of dwellings and the division of the 
land. In some places the village is built along a single street, 
and the land cut in long strips extending back from the 
dwellings. In others the dwellings are in a cluster and the 
land divided so as to assign to each his three fields, to be 
tilled according to the prevailing three field system of rota- 
tion of crops. Where the system of permanent ownership of 
these fields obtains, whenever cultivation is extended over 
reclaimed forests or other common lands, a division oif these 
is made, and each receives his allotment. As a result of in- 
heritance still further divisions are made, and thus it has 
come to be the case that much of the land is divided into ex- 
ceedingly small patches, and one owner may have a great 
number of them scattered about. In some cases, for mutual 
protection, the peasants gathered into larger villages, and the 
lands they held were scattered over a considerable district. 
In some places all the lands have been divided, while in others 
there are still common pasture, forest and meadow lands. 
In the northern and western parts the village system is not 
general ; the farms are in compact bodies, with dwellings 
scattered over the country. This has been promoted by the 
entailment of estates, by a custom of leaving the land to a 
single heir and by restriction of the numbers of children. 

The minute subdivision of lands has been regarded as an 
evil, and in some of the states methods have been adopted by 
the government of reapportioning the districts so as to throw 
all the lands of an owner into a compact body. This has 
been found a somewhat difficult task to perform satisfactorily. 
While some of these peasant holdings were free or allodial, 
as a rule they were under a lord, who not only took a share, 
of the produce, but was also accustomed to compel the tenant 
to labor for him on his separate lands a portion of the time. 
Such service was called frohn, and, as the lord was himself 
the judge of all matters of right on his estate, was often very 
oppressively exacted. The condition of the peasantry from 



GERMANY, AUSTRIA, HUNGARY AND POLAND 501 

the establishment of the feudal system till the revolution was 
essentially that of serfs, and those claiming allodial tenures 
were loaded with taxes or pillaged in one form or another, so 
that their condition was hardly distinguishable from that of 
the feudatories. Poverty and oppression in peaceful times, 
ruin and death in war, have been the lot of the German peas- 
ants for many centuries. In the cities the ancient democratic 
systems had been crushed, and all political power was in the 
hands of the princes and nobility. 

In the development of its system of laws the situation of 
Germany was somewhat peculiar. After Charlemagne no 
Emperor was sufficiently powerful, and at the same time suf- 
ficiently interested in general rules of law, to undertake much 
legislation for the government of the empire. The feudal 
system furnished the basis of land tenures, and the peasantry 
had to submit to the rulership of their lords, whose will, what- 
ever it might be, was law. On church lands the rule of the 
clergy and heads of monastic institutions was probably rather 
more mild on the whole than that of the barons, but was gen- 
erally oppressive. For the government of trade the Roman 
law was studied and followed with more or less modifications. 
During the times when the free cities maintained their leagues, 
they established their own rules and customs, but with the 
founding olf schools came the study of the learning of the 
Greeks and Romans, and the principles of the Roman law 
were taken as guides in the administration of justice. 

The history and government of Poland is closely allied and 
interwoven with that of Germany, though the stratification of 
its society is somewhat different. In the earliest times of 
which we have any accounts there were three orders, 1. The 
nobles, who were the rulers; 2. Peasants, personally free but 
bound to do fixed services for their lords; 3. Serfs, who were 
the property of their masters and under their absolute power. 
In 965 King Mieczyslaw, in order to gain the hand of the 
daughter of the Bohemian king, consented to become a Chris- 
tian and be baptized. He thereupon proceeded to convert the 
nation by commanding all Poles to be baptized. The Poles 
came in frequent contact with the Russians in the east and 



502 EVOLUTION OF GOVERNMENTS AND LAWS 

the Germans on the west. In these struggles they were on 
the whole fairly successful in maintaining their position, and 
by the time of Casimir III Poland held high rank among the 
states. In 1364 the foundation of the university of Cracow 
was laid by Casimir, whose plans with reference to it were 
afterward carried forward by Queen Jadwiga. In 1347 by 
the statute of Wislica many matters were regulated. The 
duty of a palatine was to lead the troops of his palatinate in 
war and to preside over the diet of the nobles of his province. 
Under the palatines were castellans who were their lieutenants 
in war. Palatines and castellans were senators and judicial 
officers who held court in their provinces. Niintii, deputies, 
were chosen from the various districts of each palatinate. 
The senators, o)f whom sixteen were ecclesiastics, all sat in 
one house. By this statute the power of life and death, there- 
tofore exercised by the nobility over the lives of their serfs, 
was taken away, and a peasant ill treated by his lord was 
allowed to remove to the estate of another. The inhabitants 
of the towns, of whom many were Germans, were governed 
by the law of Magdeburg, to administer which a Teutonic 
tribunal was established at Cracow, consisting of a judge, 
versed in foreign law and seven citizens nominated by the 
starosta. It is said that before this there were no written 
laws in Poland. The national diet was made up of the nobles 
and upper clergy and some of the prominent citizens. It 
soon not only determined questions of peace and war but also 
elected the kings. The diet chose as Casimir's successor Louis, 
King of Hungary. In 1369 by the marriage of Queen Jad- 
wiga with Jagiello Prince of Lithuania the two countries were 
united. He was not a Christian, but became one and pro- 
ceeded to convert his Lithuanian pagan subjects by command- 
ing them to be baptized. In a diet held in 1496 it was or- 
dained that thereafter no peasant or burgher should hold office 
in the church, and the peasantry were obliged to submit their 
causes to courts presided over by their noble masters. It was 
also decreed that no king should declare war without the 
consent of the diet. Shortly after this burghers and peasants 
were prohibited from owning lands. In the diets the Slavonic 



GERMANY, AUSTRIA, HUNGARY AND POLAND 503 

principle of unanimity of decision was adopted. This proved 
not merely inconvenient but disastrous, and rendered it pos- 
sible to prevent action on any matter of importance by merely 
corrupting one member. When majorities were effectively 
checked by minorities, fights and bloodshed often followed. 
Nowhere was the rule of an oligarchy more complete and 
tyrannical, and nowhere else was there ever more turbulence 
and discord among the governing body. In 1529 Sigismund 
published his code of laws in the White Russian language. 
Though by the pacta conventa, exacted from Henry o)f Valois 
when he was elected to the Polish throne, the power of the 
King had been closely limited, on the choice of Stephen Batory 
as his successor, after Henry's return to France to become its 
king, still further restrictions were imposed by the nobles. 
Sixteen senators were chosen at each diet to attend and 
counsel with the king, and no decree could be issued by him 
without their consent. The right of final appeal to the king 
was taken away, and his jurisdiction was limited to a small 
district about his palace. The local diets of the palatinates 
elected their judges, who constituted courts of final jurisdic- 
tion over causes between the nobles. In 161 7 Wladislaw, son 
of King Sigismund of Poland, was chosen Czar of Russia, 
but he was soon driven out. In 1652 a single member of the 
diet by his veto prevented a resolution in which all the rest 
concurred. Afterward action was similarly defeated on many 
occasions. Under John Sobieski the Poles took a leading part 
in the great battles with the Turks which resulted in their 
crushing ddfeat before Vienna in 1683. From this time the 
power of Poland rapidly declined. In 1772 the first partition 
was made, in which Prussia, Austria and Russia each took 
portions of its territory, and in 1846 the last vestiges of its 
independent national existence were obliterated by its great 
neighbors. The constitution and characteristics of Polish so- 
ciety were peculiar. It had law but no justice, a king with 
little real power and a sorely oppressed peasantry. The no- 
bility, who alone possessed real power, surrounded themselves 
with their retainers and lived in luxury and vice from the 
labors of their serfs. In their associations with each other 



5o 4 EVOLUTION OF GOVERNMENTS AND LAWS 

they were turbulent, quarrelsome and jealous, yet in contests 
with kings and peasants they zealously maintained the unjust 
privileges of their order. Poland presented compactly the 
undivided rule of the nobility, which throughout Germany 
was interspersed with democratic cities and peasant communi- 
ties maintaining more or less independence in the manage- 
ment of their local affairs. Its loss of national life was 
mainly due to the lack of moral basis for the authority ex- 
ercised by the nobility and the want off a recognized theory 
binding the people together for their mutual protection. 
Gross oppression of the multitude destroyed the military 
efficiency of the common people, and the rivalries, ambitions 
and jealousies of the npbility unfitted them for cooperation 
against foreign enemies. 

In its educational institutions Germany took high rank at 
the time of the French Revolution, most of her great universi- 
ties having been founded long before that time. Religious 
toleration and a genuine desire for knowledge tended to favor- 
able conditions for the dissemination of political truths. 
While German rulers were alarmed at the uprising in France 
and arrayed themselves on the side of kingly rule, there was 
much response among the people to the demand for liberty, 
equality and fraternity. With the cry of "war to the palace 
but peace to the cottage," Napoleon was able to recruit his 
armies on German territory and to attach many of the smaller 
states to his interests. Though himself a military despot, 
Napoleon succeeded in posing as the leader of the multitude 
in an attack on arbitrary power, and his successes were largely 
due to the rising spirit of the commonalty. During the 
progress of the wars with Napoleon reforms were freely 
promised by German rulers, and in 1807 under the lead of 
Stein Prussia established a responsible ministry as the confi- 
dential advisers and executive agents of the king, abolished 
serfdom, removed the disability to own land from the common 
people, and allowed to all a free choice of occupation. By the 
Stadteordenung of 1808 the right of local self-government 
was restored to the cities, and the system of administration 
was thoroughly reformed. In 18 10 Hardenberg broke the 



GERMANY, AUSTRIA, HUNGARY AND POLAND 505 

bond between the peasants and landed aristocracy by making 
the tenants absolute owners of two-thirds their holdings, leav- 
ing the other third to the landlord. Yet more important was 
the establishment of the great common school system under 
the guidance of William von Humboldt, which has been of 
such incalculable benefit. The military system was again re- 
modelled so as to include in the army the w T hole body capable 
of bearing arms. In the final struggle by which Napoleon was 
overthrown, Prussia played a leading part. Thorough re- 
forms were also made in the civil administration, and ap- 
pointments were based on competitive examinations. 

In Austria, though some concessions were made tending to 
relieve the oppressed peasantry, and more were promised, no 
marked change of system was inaugurated. 

In 1806 Napoleon succeeded in forming the Confederation 
of the Rhine, composed of central and southern states with 
himself as protector, thus detaching from Austria and Prus- 
sia a large German element. After the first peace of Paris a 
congress of German state was held at Vienna to rearrange the 
political constitution of Germany. Prussia was given part of 
Saxony, the Rhineland and Swedish Pomerania, Austria took 
Salzburg, Vorolberg and Tyrol. The members of the Rhenish 
confederation were mostly left with their territory intact, the 
kingdom of Westphalia and other states established by Napol- 
eon being abolished. Hanover was made a kingdom, Weimer, 
Mecklenburg and Oldenburg grand duchies, and Lubeck, 
Bremen, Hamburg and Frankfort free cities. The German 
Bund was formed, composed of thirty-nine states, each inde- 
pendent in its local affairs. The governing body was a Diet 
in which each state was represented, sitting at Frankfort 
under the presidency of the Austrian plenipotentiary. The 
Diet was authorized to settle all disputes between members of 
the confederation, neither of which was allowed to make war 
on another, nor to form alliances against the interests of any 
other member. It was further provided that each state should 
establish a constitutional system of government. 

The restoration of the Bourbons to power in France was 
followed by a reaction in which the kings again asserted their 



5o6 EVOLUTION OF GOVERNMENTS AND LAWS 

arbitrary powers. Austria, under the guiding hand of Met- 
ternich, continued to be a harsh and grinding despotism, ruling 
over a diverse population of Germans, Magyars, Slavs, Ital- 
ians and others. No steps were taken to secure popular 
representation or substantial justice to the lower stratum of 
society. Neither did Prussia proceed to form a constitutional 
government, though a number of provincial diets were ap- 
pointed. The government soon began to ifear the march of 
liberal ideas at the schools, and in 1819 a conference of the 
ministers resulted in issuing a decree placing the universities 
under police supervision and providing for rigid censorship 
of publications. A commission was also appointed to detect 
secret political societies. In Nassau, Weimar, Bavaria, Baden 
and Wiirtemberg constitutions were granted which resulted 
in checking the arbitrary rule but little. The reactionists main- 
tained their ground till 1830, when constitutional govern- 
ments were established in Hanover,, Brunswick, Saxony and 
Hesse-Cassel, and freedom of. the press was granted in the 
other constitutional states. The main advance made through 
the medium of the Diet was in the abolition of trade restric- 
tions and the foundation of the Zollverein, in which all the 
states but Austria joined. In 1847, to prevent a popular ris- 
ing which seemed threatening, Frederick William IV of Prus- 
sia summoned to Berlin a diet, made up of representatives of 
the provincial diets, which formulated its demands ifor popu- 
lar representation in government, but the king refused to 
abate his claims of power to rule by right Divine. In the 
following year a popular convention was held at Mannheim, 
at which four fundamental reforms were demanded, — free- 
dom of the press, trial by jury, national armies, and popular 
representation. These demands were universally adopted by 
the liberals, and within a few days thereafter there was a 
liberal ministry in each of the small states. In Austria Met- 
ternich was dismissed, a new cabinet for Hungary appointed 
and constitutional government promised. In Prussia there 
was a popular uprising, and Frederick William promised 
compliance with the demand for constitutional government. 
An assembly was summoned, at which the demands of the 



GERMANY, AUSTRIA, HUNGARY AND POLAND 507 

reformers were discussed. At last the king dissolved the 
assembly, and on Dec. 5, 1848 granted a constitution and 
gave orders for the election of a representative chamber. In 
the meantime, at a preliminary meeting held at Heidelberg, a 
call was made for all Germans who were or at any time had 
been members of the Diet to meet at Frankfort to consider the 
subject of national reforms. About 500 accepted the invi- 
tation and convened. After long discussion and the failure 
of many projects for a compact German state, a scheme was 
adopted and accepted by a number of states under the name 
of The Union, and on March 20, 1850 a parliament consist- 
ing of two houses, chosen under the arrangement, met at 
Erfurt. Austria again headed the reactionists, and under her 
leadership representatives olf the states met at Frankfort on 
Sept. 4, 1850, and proceeded to act as the restored Diet. Prus- 
sia stood at the head of the Union, Austria of the old Bund. 
Prussia and its supporters however soon yielded, and from 
June 12, 1 85 1, the old Diet was recognized and went on with 
its sittings as before and the Union disappeared. Following 
the outbursts of 1847 an d 1848 was a period of reaction in 
which political offenders, i.e. those opposing arbitrary power, 
were severely treated, and petty despotism again appeared 
triumphant notwithstanding the constitutions. In 1864 Prus- 
sia took Schleswig, Holstein and Lauenburg from Denmark 
by force. In 1866 the superiority of the military establish- 
ment of Prussia over that of Austria was demonstrated in a 
most remarkable campaign begun June 14 and ended July 3 
by the battle of Koniggratz, in which Austria was completely 
humiliated. Thereupon Prussia annexed Hanover, Hesse- 
Cassel, Nassau, Frankfort, Schleswig and Holstein. All states 
north of the Main were forced into a North German con- 
federation with Prussia at its head. Steps were taken for 
the formation of a confederate parliament, but the war with 
j France in 1870 cleared the way for the present empire. On 
Jan. 18, 1 87 1 in the palace of Versailles and in the presence 
of a great assemblage of German princes and officers the 
Prussian king was proclaimed emperor of Germany. The ex- 
isting German empire was thereupon established and sane- 



508 EVOLUTION OF GOVERNMENTS AND LAWS 

tioned by Austria and the confederate parliament. On March 
21, 1 87 1, the Diet met at Berlin and the constitution of the 
North German confederation, which had been accepted in 
1867 by a Diet elected by general ballot, was extended and re- 
vised to meet the changed conditions. By this constitution 
all the German states, except those included with Austria, 
Hungary, Holland and Belgium, the two last named of which 
of late have not been treated as strictly German, became con- 
solidated in the new German Empire. 

The present constitution was promulgated April 16, 1 871, by 
the Kings of Prussia, Bavaria and Wurtemberg and the 
Grand Dukes of Baden and Hesse. It defines the territory olf 
the empire and gives its laws precedence over those of the 
individual states. All laws are required to be proclaimed in 
the Imperial Gazette. A common citizenship is established 
throughout all Germany, on which no state may place 
limitations. 

The following matters are under the legislative control of 
the empire; matters of domicile, citizenship, passports, trade 
and industry, custom duties, commerce, regulation of weights, 
measures, coinage and the emission of paper money, general 
banking regulations, patents for inventions and copyrights, 
protection of trade in foreign countries and organization of 
the consular service, railways, navigation on water ways 
common to several states, postal and telegraph affairs, recipro- 
cal execution of judgments of one state in another, the authen- 
tication of public documents, laws concerning notes, 
obligations, commerce, crimes and legal procedure, police 
regulation of medical and veterinary matters, and laws re- 
lating to the press and to the right olf association. 

The legislative power is vested in the Federal Council and 
Reichstag. A majority of votes of each body is necessary for 
the passage of a law. The Federal Council consists of fifty- 
eight members, of which Prussia has seventeen, Bavaria six, 
Saxony and Wurtemburg four each. Baden and Hesse 
three each, Mecklenburg-Schwerin and Brunswick two each 
and Saxe-Weimar, Meeklenburg-Strelitz, Oldenburg, Saxe- 
Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, Anhalt, 



GERMANY, AUSTRIA, HUNGARY AND POLAND 509 

Schwartzburg-Rudolstadt, Schwartzburg-Sonderhousen, Wal- 
deck, Reuss (elder branch), Reuss (younger branch), Schom- 
berg-Lippe. Lippe, Lubeck, Bremen and Hamburg one 
each, but the vote of each state must be cast as a unit. 
The Federal Council has a general oversight of the execution 
of the laws of the empire, appoints seven permanent commit- 
tees from its own members and proposes laws to the Reichstag. 
Each member of the Council has the right to appear and be 
heard in the Reichstag, but the same person cannot be a mem- 
ber of the Council and Reichstag at the same time. 

The king of Prussia is made president of the Confederation 
with the title German Emperor with power to declare war 
and conclude peace, form alliances, make treaties, accredit 
and receive ambassadors; but for a declaration of war in the 
name of the empire the consent of the Council is required, 
except in case of attack. He convenes the Council and Reich- 
stag, adjourns and closes them. The Council and Diet shall 
be convoked annually. The Council may be convoked with- 
out the Reichstag, but the latter cannot be without the Coun- 
cil. The Chancellor of the empire presides in the council. 
Bills laid before the Council in the name of the emperor and 
adopted are presented to the Reichstag and advocated by 
members of the Council or by special commissioners appoint- 
ed by them. The Emperor appoints and dismisses imperial 
officials, prepares and publishes the laws and supervises their 
execution. "The decrees and ordinances of the Emperor 
shall be made in the name of the empire, and require for their 
validity the signature of the Imperial Chancellor, who thereby 
takes upon himself the responsibility for them." 

The members of the Reichstag are chosen by ballot for 
three years' terms. An imperial official may be elected to the 
Reichstag, but if he accepts an office of higher rank, or if 
a member accepts a new appointment to a salaried office of 
the empire or a state, he forfeits his seat. The proceedings 
of the Reichstag are public, and it may propose laws, and has 
power to judge of the election of its own members and regu- 
late the mode of transacting its business. A majority of all 
constitutes a quorum. In matters not affecting the whole em* 



Sio EVOLUTION OF GOVERNMENTS AND LAWS 

pire only members from the states concerned may vote. Mem- 
bers have a limited privilege from arrest and draw no pay 
as such. Germany forms a custom and commercial union 
with substantially free trade among its states, except that the 
Hanseatic cities of Bremen and Hamburg remain free ports 
outside the union. Custom duties are regulated by the empire. 
A number of special provisions relating to taxation are 
inserted. 

"Art. 41. Railways, which are considered necessary for the 
defense of Germany, or in the interest of general commerce, 
may, by imperial law, be constructed at the cost of the empire, 
even in opposition to the will of those members of the union 
through whose territory the railroads run, without prejudice 
however, to the sovereign rights olf that country; or private 
persons may be charged with their construction and receive 
rights of expropriation. Every existing railway company is 
bound to permit new railroad lines to be connected with it, at 
the expense of the latter. All laws granting existing railway 
companies the right of injunction against the building of par- 
allel or competitive lines are hereby abolished throughout the 
empire, without detriment to rights already acquired. Such 
rights of injunction cannot be granted in concessions to be 
given hereafter." Provisions are made for the operation of all 
railroads in harmony and all charges are subject to Imperial 
control. Art. 48. "The post and telegraph system shall be 
organized on a uniform plan and managed as state institutions 
throughout the German Empire." 

Art. 50. "The Emperor has supreme supervision of the 
administration of post and telegraph." 

Art. 53. "The navy of the Empire is a united one under the 
supreme command of the Emperor." 

The merchant marine is made subject to regulation by the 
Empire. 

Art. 57. "Every German is subject to military duty, and 
in the discharge of this duty no substitute can be accepted." 

Art. 59. "Every German capable of bearing arms shall be- 
long if or seven years to the standing army." Three years in 
active service, four years in reserve. The next eleven articles 



GERMANY, AUSTRIA, HUNGARY AND POLAND 511 

also relate to military affairs and contain among others the 
following provisions : 

Art. 64. "All German troops are bound implicitly to obey 
the orders of the Emperor. This obligation shall be included 
in the military oath." 

Art. 68. "The Emperor shall have the power, if public se- 
curity within the federal territory demands it, to declare 
martial law in any part of the Empire ; and until the publication 
of a law regulating the occasions, the form of the announce- 
ment, and the effect of such a declaration, the provisions of the 
Prussian law of June 4, 185 1 shall be considered in force." 
Arts. 69 to 73 inclusive relate to finances. 

Art. 69. "All receipts and expenditures of the Empire 
shall be estimated yearly, and included in the budget. The 
latter shall be fixed by law before the beginning of the fiscal 
year." 

Art. 76. "Disputes between the different states of the union, 
so far as they are not of a private nature and therefore to be 
decided by the competent judicial authorities, shall be settled 
by the federal council, at the request of one of the parties." 

Art. 78. "Amendments of the Constitution shall be made 
by legislative enactment. They shall be considered as rejected 
when fourteen votes are cast against them in the federal coun- 
cil. The provisions of the Constitution of the Empire, by 
which certain rights are secured to particular states of the 
union in relation to the whole, shall only be modified with the 
consent of the states affected." 

An analysis off this readily shows that the leading purpose 
subserved is that of organization and consolidation of the 
German states into one Empire with increased military effi- 
ciency. There is no article in the whole instrument clearly 
framed to protect the citizens against the usurpation or unjust 
use of power by the government. The Reichstag as a repre- 
sentative body is the sole check on Imperial power. Its legis- 
lative powers are not circumscribed. 

To an American it seems strange that there is no separate 
title devoted to the Judiciary. The mention of courts is inci- 
dental and there is not a line establishing any independent 



512 EVOLUTION OF GOVERNMENTS AND LAWS 

power in them, with the sole exception that certain offenses 
affecting the state are to be tried before the Court of Appeals 
of the three free Hanseatic towns at Lubeck. The principal 
mention of the courts is in the latter part of Article 75, as 
follows : "More definite provisions as to the competency and 
the procedure of the Superior Court of Appeals shall be made 
by imperial law. Until the passage of a law of the Empire, 
the existing competency of the courts in the respective states 
of the Empire, and the provisions relating to the procedure of 
those courts shall remain in force." 1 

Each of the states included within the empire except Alsace, 
Lorraine and the two grand duchies of Mecklenburg have con- 
stitutional governments, and the six larger states have two 
houses in their legislative bodies in which the upper includes 
the nobility, clergy and representatives of the wealthy class, 
and the lower is made up of representatives chosen by the 
voters. 

In the completeness of its military organization Germany 
may fairly be accorded first place among all the nations of the 
earth. Every man is subject to military service and no substi- 
tution is allowed, every German capable of hearing arms is 
required to serve in the standing army seven years from the 
age of twenty-one to twenty-eight. The first three years he 
must spend in active service and the remainder in the reserve. 
After this he belongs to the landwehr for five years more. 
Those receiving a fixed standard of high school training are 
required to serve actively only one year. All males between 
the ages of seventeen and forty-two, not included in the above, 
are members of the landsturm, liable to be called into active 
service in case of invasion. The emperor is the commander of 
this immense force, which is most thoroughly and efficiently 
organized with officers of various grades appointed by him. 

Of the expenditures of the Imperial Government the army 
and navy and military pensions have absorbed as high as 
eighty per cent of the total. This, however, does not include 
expenditures in the maintenance and operation of the rail- 
roads, posts and telegraphs, which are paid from earnings and 
leave a net surplus of revenue. 

1 Foreign Constitutions 1894. 



GERMANY, AUSTRIA, HUNGARY AND POLAND 513 

Education is made compulsory throughout the empire. 
Most of the expenses of the primary and secondary schools 
are borne by the local governments, but much is done by the 
imperial government to promote the educational system. Its 
great universities rank with the best in the world. Many of 
these have endowments which go far toward defraying their 
expenses. No other country has done more to distribute 
among its people the treasures of accumulated knowledge than 
Germany, and none has profited more from the wisdom of 
such a course. As a result of its most excellent school system 
illiteracy among its people is almost unknown, and its great 
universities and technical schools are famed the world over 
for their thoroughness and breadth of learning as well as for 
their progressiveness. At the head of the judicial system is 
the Reichgericht, the judges of which, 90 in number, are ap- 
pointed by the emperor. It is the supreme court and court of 
appeals for the empire. All inferior courts are courts of the 
separate states, but all are subject to imperial legislation. 
Small civil cases involving amounts up to about $100 are de- 
cided by the Amtsgericht. Above is the Landesgericht, of 
which there are 170 in the empire, with more extended juris- 
diction, and over this is the Ober Landesgericht, the highest 
court of the state, exercising appellate jurisdiction. Petty of- 
fenses are tried by a judge and two Schoffen : Serious crimes 
by judge and jury. Courts of arbitration, presided over by a 
judge, are also provided for commercial causes. The system 
of procedure is rather more summary than that prevailing in 
England and the United States. The law is studied as a pro- 
fession, and advocates practice before the courts. The num- 
ber of lawyers, however, in proportion to population is 
relatively very small. The judges and members of the pro- 
fession bear high rank for integrity and ability, and except in 
rare political causes, the administration of justice is efficient 
and creditable. A summary of the Civil Code which took 
effect in 1900 will be ifound in the Appendix. 

The political history of Hungary is interwoven with that of 
Austria and can best be considered in connection with it. 

The first king of Hungary is called St. Stephen, and ruled 



514 EVOLUTION OF GOVERNMENTS AND LAWS 

997 to 1038. He was converted to Christianity and took 
active measures to convert his subjects. He was very zealous 
in promoting the establishment of churches and monasteries. 
The king owned a large part of the lands, from which he re- 
ceived a portion of the crops and military service from his 
retainers on them. He also levied taxes on the products of 
the mines and exacted one-thirtieth the price of merchandise 
sold at fairs, as well as tolls on roads, bridges and ferries. 
Presents to the king were also required from the towns on 
given days. The power of the king was not that oif an abso- 
lute ruler over the whole country, but resembled more a great 
proprietor's over his estate. The Church and the no'bility ex- 
ercised over their domains substantially the same authority as 
the king over his. At court the king had his lord palatine, 
court judge, lord of the treasury and minor officials. The 
towns elected their own judges and local officials. The labor- 
ers on the estates of the king and of the nobility were without 
political rights, and subject to the authority of their lords. 
The powers of the king were not clearly defined. Appeals lay 
from the acts of the nobles to the king, but in their own 
domains the nobles were practically absolute masters. The 
authority of the king was theoretically absolute, but subject 
in fact to checks imposed by the nobility. A most remarkable 
document, hearing a strong resemblance to the English Magna 
Charta, is called the "Golden Bull," extorted from Andrew II, 
who ruled 1205 to I2 35> given in the form of a letter, by 
which he recited that, "The nobles and others in our realm 
have suffered detriment, in many parts, of their liberties ap 
established by King St. Stephen, through the power of some 
kings, who either ifrom anger revenged themselves or listened 
to the counsel of wicked advisers or sought their own advan- 
tage." It then proceeds to ordain that the anniversary of the 
sacred king should be celebrated at Stuhlweissenburg : that the 
king should be present in person or by his palatine to hear 
causes ; that all the nobles might freely assemble there ; that the 
nobles should not be detained or oppressed except by due pro- 
cess of law ; that no taxes should be levied on the estates of the 
nobles or the clergy; that if a noble die without male issue his 



GERMANY, AUSTRIA, HUNGARY AND POLAND 515 

daughters should inherit one-fourth his property and the rest he 
might dispose of as he pleased, in default of which it should 
go to his next of kin, but in case he was absolutely without 
kin then to the king. If the nobles were called on to go out 
of the country to war he must pay the expense. "The pala- 
tine shall be judge over all the people of our realm without 
distinction, but in capital cases and matters of property which 
concern the nobles, the palatine shall not decide, without the 
king's knowledge" ; that foreigners should not be given lands 
and should not be elevated to dignities without the consent of 
the council of the realm ; that offices should not be granted in 
perpetuity, and Ishmaelites and Jews should be incapable of 
holding them "excepting these four great lords, the palatine, the 
banus, the court judges of the king and queen, no one shall 
have two dignities at the same time. Should, however, we or 
any of our successors at any time be disposed to infringe upon 
any of these four orders, the bishops as well as the other lords 
and the nobles of the realm shall be at liberty, jointly or singly, 
by virtue of this letter, to oppose and contradict us and our 
successors forever, without incurring the penalty of treason." 
All the burdens were of course borne by the peasants and 
laborers. From the fruits o)f their toil the landed gentry lived 
in idleness and drunkenness. Against the oppression of the 
lord the peasant could only appeal to the lord himself, with 
the chance of greater oppression for having made complaint. 
In 1 5 14 the peasants were gathered for the crusade. Many 
of the lords opposed it because they needed the laborers in the 
fields. 40,000 of them assembled at Pesth. Instead of march- 
ing against the Turks, under the leadership of George Dozsa 
they marched against the nobles. They took many castles 
and massacred such of the nobles and their families as fell 
into, their hands. The nobles finally rallied and under the 
lead of the vayvode of Transsylvania defeated the peasants 
and captured Dozsa, whom they placed on a red hot iron 
throne and crowned with a red hot crown and gave a red hot 
sceptre. Many others were tortured and killed. The diet, 
which assembled soon after, ordained the perpetual servitude 
of the peasantry, and fixed them to the soil, which before that 



516 EVOLUTION OF GOVERNMENTS AND LAWS 

time they had been allowed to leave. At the same session was 
passed and confirmed by the king what is termed the tri-partite 
code, compiled by Stephen Verboczy the chief justice. It ac- 
corded equal rights to all the nobles, who could not be deprived 
of liberty without due trial and were exempt from taxation 
and subject only to the king and as to the peasant it provided, 
"The peasant has no sort of right over his master's land save 
bare compensation for his labor and such other rewards that 
he may obtain. Every species of property belongs to the 
landlord, and the peasant has no right to invoke justice and 
the law against a noble." 

Austria, so long the head of the German Empire, has ceased 
to be a part of it, but is still one of the great states of Europe. 
The past century has witnessed the loss df much of its terri- 
tory, including its possessions in Italy, but it still governs a 
large and exceedingly rich district. When in 1806 Napoleon 
established the confederation of the Rhine from sixteen Ger- 
man States, the Emperor Francis renounced the title of em- 
peror of the Romans and assumed that of Emperor of Austria. 
Though promises of reforms were made, Austria constantly 
recurred to its despotic methods, and lent its aid to perpetuate 
arbitrary rulership throughout Europe. The only marked 
step in advance during the' long reign of Francis, who died 
in 1835, was the establishment of a system of primary schools. 
Discontent grew among the people, and in 1846 an insurrec- 
tion occurred in Galicia. This was soon suppressed, and the 
dismemberment of Poland was completed. In 1848 far more 
serious outbreaks occurred. Metternich, the counselor off 
tyranny, resigned and went to London. An imperial proc- 
lamation was issued abolishing the censorship of the press, 
establishing a national guard and convoking a national as- 
sembly. Under the leadership of the members of the uni- 
versity of Vienna the national guard and academic legion 
organized a committee and dictated laws to the government. 
On May 17, the Emperor Ferdinand and his wife fled to Inns- 
bruck. Uprisings in Italy followed and soon after in Bohemia 
and Hungary also. Civil war ensued between the imperial 
supporters and the revolutionists, which did not end till 130,- 



GERMANY, AUSTRIA, HUNGARY AND POLAND 517 

000 Russian troops invaded Hungary in support of the im- 
perial cause. The triumph of the supporters of despotic rule 
was accompanied by the slaughter of great numbers in battles 
and by shooting and hanging the leaders of the revolt who 
were captured. The congress organized by the revolutionists 
was dissolved and the emperor, of his own motion, promulga- 
ted a constitution. Many reforms and internal improvements 
were now undertaken, but the old tendency to relapse into 
military despotism soon asserted itself, and on Jan. 1, 1852, it 
was announced that the constitution was abolished. In 1859 
the combined forces of France and Sardinia drove the Aus- 
trians from Italy, and in March i860 the emperor promulgated 
a new constitution, by which he declared that the right to 
enact, alter and abolish laws should thereafter be exercised by 
himself and his successors only with the cooperation of the 
Reichsrath. This body was established for the empire and 
to be composed of representatives of the several kingdoms in- 
cluded within it. On Feb. 27, 1861, it was decreed that their 
former constitutions should be restored to Hungary, Croatia, 
Slavonia and Transylvania. At the same time a law was 
promulgated providing for the representation of the different 
portions of the empire in the Reichsrath, which was made up 
of two bodies, a house olf peers and one of deputies. On May 
1, 1 86 1, the new Reichsrath was formally opened by the em- 
peror in a speech in which he said, "that liberal institutions 
with the conscientious introduction and maintenance of the 
principles of equal rights to all the nationalities of his empire, 
of the equality of all his subjects in the eye of the law, and 
of the participation of the representatives of the people in the 
legislation, would lead to a salutary transformation of the 
whole monarchy. " Hungary, Croatia, Slavonia and Transyl- 
vania declined to send representatives, claiming separate con- 
stitutions. After the humiliating defeat by the Prussians in 
1866, the emperor turned his attention to the improvement of 
the affairs of his empire. The Hungarians were in passive re- 
bellion, refusing to pay their taxes. In 1865, the emperor 
had recognized the necessity of self-government for Hungary 
in local affairs, and on Nov. 19, 1866, by an imperial rescript, 



Si8 EVOLUTION OF GOVERNMENTS AND LAWS 

he promised the appointment of a responsible ministry and the 
restoration of municipal self-government. Baron Beust, a 
Saxon and a Protestant, was made prime minister of the em- 
pire. In 1867 the Reichsrath assembled at Vienna, and many 
important measures of reform were adopted. On June 8, 
1867 tne emperor and empress were crowned king and queen 
of Hungary at Pesth, at which time pardon and amnesty for 
political offenses were granted. Religious toleration was ac- 
corded by the Reichsrath. In 1873 the power of choosing 
members of the Reichsrath was transferred from the provin- 
cial diets to the voters. 

Under its present constitution Austria-Hungary recognizes 
the hereditary succession to the throne by primogeniture in 
the male line of the house of Hapsburg-Lothringen and, on 
the failure of male heirs, in the female line. Two distinct 
states are recognized as joined for common ends, each having 
its own ministers and legislative bodies. These are subor- 
dinate to a controlling body called the Delegations, consisting 
of sixty members of each state, two-thirds elected by the lower 
house and one-third by the upper house of each parliamentary 
body. They usually sit and vote in two chambers, one for 
Austria and the other for Hungary, but in case of disagree- 
ment they all sit together, and the decision of a majority is 
binding on both states when approved by the emperor. The 
administration of the empire is divided into three executive 
departments, Foreign Affairs, Ministry of War, Ministry of 
Finance. These ministers are accountable to the Delegations. 
The Reichsrath of Austria consists of an upper and lower 
house. The former is composed of : First, Princes of the 
Imperial House; Second, Heads of noble houses of high 
hereditary rank; Third, Archbishops and bishops with the 
rank of princes; Fourth, Li/fe members, nominated by the 
emperor for distinguished services. The lower house is com- 
posed of three hundred and fifty-three members elected by all 
citizens possessing a small property qualification. The em- 
peror convokes the Reichsrath annually and nominates the 
presiding officers of each house from among its members. It 
has general legislative powers on matters of trade, finance, 



GERMANY, AUSTRIA, HUNGARY AND POLAND 519 

railways, posts, telegraphs, customs, mints, military service, 
etc. Members of either house may propose new laws, which 
must receive the sanction of both houses and the emperor. 
The executive functions for Austria are vested in a Ministerial 
Council presided over by the emperor or minister president 
and made up of ministers of the interior, of religion and edu- 
cation, finance, commerce, agriculture, national delfense, and 
justice. There are also local diets in the seventeen provinces 
with powers over local concerns. 

The Hungarian parliament also has an upper and a lower 
house, known as the House of Magnates and the House of 
Representatives. The former is made up of three princes of 
the reigning house having estates in Hungary, thirty-one 
archbishops and bishops and 381 high officials and noblemen. 
The Lower House is made up of representatives chosen for 
three years by all citizens paying a certain amount of tax and 
contains about 450 members. There is a similar ministry in 
charge of the executive department for Hungary as in Austria. 
Great progress has been made during the last half century in 
the educational system, but it is still far behind that of Prussia, 
owing largely to the domination of the priesthood. All child- 
ren from 6 to 12 are bound to attend the common schools. 
There is a fair system of secondary schools and there are seven 
universities at Vienna, Gratz, Innsbruck, Prague, Cracuvv, 
Lemberg and Pesth. There are also various technical schools. 
Austria-Hungary has made great progress in its railroads, 
owned by the state, which are a marked success and afford 
excellent service at exceptionally low rates. It also owns and 
operates the telegraphs. The judicial system for Hungary is 
independent of the administration. The supreme court sits at 
Buda-Pesth. There is a secondary court of appeals at Moros- 
Vacarhely in Transylvania. Under these is a system of what 
are termed royal courts and of circuit courts. 

On July 23, 19 14, Francis Ferdinand, archduke of Austria, 
and his wife were killed at Sarajevo in Bosnia by a Serb. The 
crime was charged to Servia, and Austria made demands with 
which the Servian government was unwilling to comply, but it 
offered to submit the matters in difference to the Hague Tri- 



520 EVOLUTION OF GOVERNMENTS AND LAWS 

bunal. To this Austria refused to consent but demanded im- 
mediate acceptance of its terms. On July 28, 1914, Austria- 
Hungary declared war on Servia. Other declarations of war 
then followed in rapid succession : by Germany on Russia on 
August 1 ; by Germany on Belgium on August 4 ; by England 
on Germany on August 5; Austria-Hungary and Russia de- 
clared war on each other on August 6; England declared war 
on Austria-Hungary on August 13, and Japan declared war 
on Germany on August 23. Germany invaded Belgium on 
August 2 and attacked Liege on Aug. 5. War with all its 
horrors blazed on both the eastern and western fronts, and one 
after another the leading nations of the world took part in 
the conflict, Bulgaria and Turkey siding with Austria and 
Germany, and Italy, Roumania and others with France and 
Great Britain. On April 6, 191 7, President Wilson signed 
the resolution which had been passed by Congress declaring a 
state of war with Germany. Thus began the greatest war of 
all time. More men and more of the nations participated in 
it than in any other, and new inventions extended the field 
of military operations to the air and the depths of the sea and 
added new and vastly more destructive explosives and engines 
of warfare than were ever known before. Germany began 
the work of slaughter and destruction with by far the largest 
and best equipped army that had ever been organized, and ex- 
pected to be able to crush France, Belgium and Russia before 
England or the other nations could come to their aid with any 
considerable force. Confident of the strength of its material 
forces it flouted the moral sentiment of the world by the un- 
provoked and ruthless slaughter and destruction it wrought 
in Belgium. Moral sentiment, backed by sufficient material 
force, at last crushed the armies and navy of Germany and 
its allies and imposed a most humiliating treaty of peace, which 
was signed at Versailles on June 28, 19 19, though an armistice 
had terminated the fighting on November 11, 191 8. For the 
first time in history a great army of Americans fought in 
Europe and became the determining factor in a struggle be- 
tween European powers. 

This war, for which the imperial houses of Hapsburg and 



GERMANY, AUSTRIA, HUNGARY AND POLAND 521 

Hohenzollern are held responsible, resulted in the overthrow 
of their dynasties, the dismemberment of Austria-Hungary 
and a substantial reduction of the area of Germany. Poland 
has been resurrected, and the new state of Czecho-Slovakia has 
been formed. On the south Servia and Montenegro with 
much territory taken from Austria-Hungary have been merged 
into the Serb-Croat-Slovene State. Greece has acquired much 
territory from Turkey and Bulgaria, and the boundaries of 
Roumania have been extended at the expense of its neighbors. 
In the north Danzig has been made a free city, mainly for the 
purpose of affording Poland an outlet to the sea. The re- 
publics of Finland, Esthonia, Latvia and Lithuania have been 
formed from fragments of the great Russian Empire. Italy 
has gained territory in the north and on the east coast of the 
Adriatic, and the territory in Alsace and Lorraine, which was 
taken by Germany by the treaties of 1871, is restored to 
France. Part of Schleswig is restored to Denmark, and other 
adjustments of boundaries at the expense of Germany have 
been made. 

The changes wrought in the political affairs of the country 
ruled by the Central Powers before the war are far more im- 
portant than the mere changes in boundaries. Contempo- 
raneous with the termination of the war the German Emperor 
abandoned the throne and took refuge in Holland, and a re- 
public was organized, which took definite form on the adoption 
of a new constitution. A National Constituent Assembly was 
elected on January 19, 19 19, and convened at Weimar. On 
July 31 it adopted a new constitution which became effective 
on August 13, 1919. This constitution effects so many changes 
in the fundamental law of Germany and contains so many 
important, carefully prepared provisions, thafit is worthy of 
most careful study, and a full copy of it is given in the appen- 
dix. Full summaries of the constitutions of the new republics 
of Poland and Czecho-Slovakia are also given in the appendix. 
These are not so full or complete as the constitution of Ger- 
many, but each of them exhibits the growth of liberal political 
sentiment and an earnest effort to improve the organization of 
society. 



522 EVOLUTION OF GOVERNMENTS AND LAWS 

Authorities 

Henderson : History of Germany. 

Henry Hallam : History of Europe during the Middle Ages. 

R. N. Bain : Slavonic Europe. 

James Fletcher : History of Poland. 

W. R. Marfill : Poland. 

Arminius Vambery : Hungary. 

Encyclopaedia Britannica. 

Continental Legal History Series, vol. I. 



CHAPTER XXI 



Holland and Belgium 



The law wood and marsh lands near the lower Rhine were 
part of the Frankish Empire. In the time of Charlemagne, in 
accordance with his general policy, it was divided into land- 
schafts and gaus ruled over by dukes and counts; each gau 
had its chief town, surrounded by a wall, wherein the count 
administered justice. The gaus were divided into marks or 
villages, in which a headman acted as judge in minor causes. 
The sovereignty over this territory alternated between French 
and German overlords. The northmen also invaded and deso- 
lated it. The piratical incursions of the vikings and the ex- 
posed situation of the country caused the people to gather into 
towns for mutual defense. These became sanctuaries, not 
merely for freemen, but serfs escaping from the estates of the 
nobles were also accorded freedom and protection. Trade, 
manufactures and other characteristics df town life developed, 
and the people soon built ships and profited from commerce 
and fisheries. From about A.D. iooo the history of Holland 
begins to take definite form under its counts, whose allegiance 
shifted according to changing circumstances from the French 
kings to the German emperors, but with little real control 
from either. 

William I, who died in 1224, granted charters to several of 
the towns, securing them in their liberties and providing for a 
regular administration of justice. Under Floris V the Hol- 
landers took part in the strife between the French and English 
kings in aid of the latter, and in return gained valuable trading 
and fishing privileges by treaty. Marked characteristics olf 
the early society were the independent and commercial spirit 
of the towns and the resistance of the claims of the nobility 
by the burghers. The counts from time to time were induced 

523 



524 EVOLUTION OF GOVERNMENTS AND LAWS 

to grant charters defining the rights of the towns. By about 
1300 the imperial authority ceased to have any recognition, 
and Holland took its place as an independent state. Prior to 
this time for about 400 years the real power had been exer- 
cised by a vigorous line of counts, who appointed bailiffs over 
the country districts and sellouts as judges in the towns. 
When matters of great interest to a city arose, the people were 
summoned into the public square by ringing the great town 
bell, and then they decided the question by vote. Justice was 
administered by a man's peers in accordance with the special 
customs of Franks, Saxons and Frisians. The supplies of the 
count were furnished by taxation, which fell mainly on the 
towns and early took the iform of contributions in return for 
protection, not merely against foreign foes, but against the 
extortions of the lesser nobility, and in their corporate privi- 
leges against all. The counts usually sided with the burghers 
against the nobility. In the fourteenth century the towns join- 
ed the Hanseatic League, from which they were ejected in the 
fifteenth. During the last half of the fourtenth century civil 
strife over the succession to the countship and the struggle 
between the burghers and the nobles, who formed the parties 
of the Kabbeljaus and Hoeks, the "Cods" and "Hooks," 
produced a state of continued disorder and much fighting. In 
1436 Holland passed under the rule of Philip of Burgundy. 
From this time the charters of the cities and the liberties of 
the burghers were treated with contempt. Trade continued to 
thrive under more arbitrary rule, and Holland developed her 
fisheries and her shipping. In the art of printing and the 
study of the learning and arts of the ancients the people of 
the cities of the Netherlands took an early and leading part. 
The dukes aided in the collection of manuscripts and the 
founding of libraries and encouraged painters and authors in 
their work, especially in Flanders and the Brabant, which in 
these particulars were in advance of Holland. In 1477 on 
her accession to power the cities secured from the Dutchess 
Mary her sanction otf the "Great Privilege," which affirmed 
the right of the cities and provinces to hold diets, to approve 
her choice of a husband and to have a voice in any declaration 



HOLLAND AND BELGIUM 525 

of war. It declared that natives alone should hold high office; 
that no new taxes should be levied without the approval of the 
estates; established one high court for Holland, Zealand and 
Friesland; and made Dutch the official language. Though 
Philip of Burgundy convened the States General in 1464, it 
was not till after his time that they were allowed real power. 
In Holland the nobles collectively had but one vote, though all 
were permitted to sit in the assembly. Each of the large 
cities was also entitled to one vote. The president of the 
states, styled the vogt, became an officer of importance. 
Through marriage of Philip with Joanna of Aragon the sov- 
ereignty of the Netherlands was inherited by Charles V, king 
of Spain and German emperor. During his reign and that of 
his son and successor Philip was carried on that long and 
desperate struggle for civil and religious liberty by the people 
of the low countries against the cruel and bigoted Spaniard. 
Never has tyranny appeared more cold and heartless than that 
exercised in the name of religion by the bloody Duke of Alva 
and the murderous tribunals which tried by torture and pun- 
ished with death the iconclasts and heretics. The charters of 
the cities and the rights of the States General were disre- 
garded, and bloody executions by hundreds and by thousands 
followed. After opposition to the Spaniards had been crushed 
out in the provinces, the Dutch took their ships and preyed on 
Spanish commerce. In 1572 the "Water Beggars," as the 
naval iforce was termed, seized Briel at the mouth of the 
Meuse; the struggle on land was renewed and pushed till the 
Spaniards were driven out of Holland. In 1581 a meeting of 
the seven northern provinces was held at The Hague, which 
declared their independence and framed a constitution in ac- 
cordance with the principles of the "Great Privilege" of the 
Duchess Mary, with William of Orange as sovereign. Under 
the able leadership of his son Maurice of Nassau the integrity 
of the country was preserved, and Holland grew in importance 
as a naval and commercial power, while the rich provinces of 
Hainault and Brabant were desolated and almost depopulated 
as a result of wars and Spanish misrule. Toward the close of 
the sixteenth century the Dutch seamen began to sail in distant 



526 EVOLUTION OF GOVERNMENTS AND LAWS 

seas, and in 1 602 the Dutch East India Company was if ormed. 
During the progress of the Thirty Years' war, 161 8 to 1648, a 
separate treaty of peace was concluded with Spain, by which 
the independence of the provinces was recognized, and Spain 
abandoned all her claims. 

In 1 65 1 a great assembly of the provinces was held for the 
purpose of settling the system of government. The Stadt- 
holder, whose office had been made hereditary in the house of 
Orange, was confirmed as commander of the military forces 
and exclusive head of the state. The legislative power was 
vested in the States General, made up of deputies numbering 
at times as many as 800. There was a permanent council olf 
state and a chamber of accounts. Each province had its own 
stadtholder and estates. Each town had its chief minister and 
each great city a senate ; that of Amsterdam containing thirty- 
six burghers, who were charged with the maintenance of 
order, the collection of taxes, and the administration of jus- 
tice. At first the senate was elected for life by the whole body 
of freemen, but from the sixteenth century vacancies were 
filled by cooptation, and it became a close oligarchy. Other 
towns were similarly organized. The senate named the depu- 
ties to the States General. The right of making war and 
peace, concluding alliances, coining money and levying taxes, 
was vested in the States General. Though in the defense of 
their liberties and their country the Dutch had many long and 
desperate wars, their foreign policy was never aggressive, 
except for the extension of their trade. In this they met with 
great success and were able to obtain trade privileges in the 
east not accorded to other countries. Their greatest acquisi- 
tion was of the rich island of Java, where they rule over a 
population many times that of Holland with very little friction 
with the natives. On the sea and in manufactures and trade 
the Dutch continued to gain their peaceful victories, and also 
carried on desperate struggles with Spain and England for 
naval supremacy. 

No marked change in the organization of the state took 
place till the breaking out of the French Revolution. In 1775 
a new constitution was formed, sweeping away the ancient 



HOLLAND AND BELGIUM 527 

system and establishing in its place an elective representative 
government, but change after change followed in quick suc- 
cession. In 1805 Bonaparte imposed a new constitution and 
a ruler, and in the next year made his brother king olf it as a 
dependency of France. In 18 10 he annexed it as a part of the 
empire. After the overthrow of Napoleon an assembly of 
notables met and recalled the prince of Orange, who had taken 
refuge in England, and chose him king under the title of 
William I. By the treaty of Paris Belgium was united to 
Holland under the hereditary sovereignty of the house of 
Orange. The king was given full executive powers and the 
initiative in proposing laws. He also appointed the council of 
state. The States General, composed of two chambers, was 
the legislative body, and similar representative assemblies were 
provided If or each province. The union of Holland and Bel- 
gium was not the result of any popular movement, but was 
an incident of the settlement of the balance of power by the 
leading states of Europe at the conclusion of the Napoleonic 
wars. Belgium had never had any well defined national exis- 
tence, having been border and disputed territory over which 
the rulers of France, Germany, Spain and Burgundy extended 
or were forced to yield their sovereignty according to the 
varying fortunes of war and diplomacy. There was never a 
close bond of sympathy between the Belgians and Dutch, the 
former being more closely allied with the French and the latter 
with the Germans. In 1830 a revolt broke out at Brussels, 
as a result of which there was a conflict between Holland and 
the people of Belgium. A cessation olf hostilities resulted 
from the mediation of the great powers, and a convention of 
delegates chosen from the different provinces of Belgium as- 
sembled at Brussels, which declared for independence and a 
constitutional hereditary monarchy. In June, 1831, Prince 
Leopold of Saxe-Coburg was chosen king, under the condi- 
tion that he would accept the constitution and swear to main- 
tain the national independence and territorial integrity, which 
he did. Further conflicts took place between the two coun- 
tries, and in 1832 France and England proceeded to enforce 
submission by Holland to the determination of the powers by 



528 EVOLUTION OF GOVERNMENTS AND LAWS 

force of arms. In May, 1833, after much negotiation, a 
treaty .was concluded providing for the settlement oif bounda- 
ries and the separation of the two countries. 

The present constitution of Holland is that established in 
1 81 4 as revised in 1848. The crown is hereditary by primo- 
geniture in both male and female lines. The king is the 
executive head with power to declare war and make peace. 
He appoints the ministers, of whom there are eight : namely, of 
the interior, the watersaat (including trade and industry, rail- 
ways, post offices, etc.) of justice, war, finance, marine, the 
colonies and foreign affairs. Though appointed by the king 
the ministers are accountable to the country for the conduct 
of affairs. The law-making power is vested in the king and 
States General, composed of two houses. The members of the 
upper house are chosen by the several provinces from those 
paying the largest direct taxes and contains thirty-nine mem- 
bers holding for terms olf nine years, one-third of the members 
being chosen every three years. The members of the lower 
house are chosen by electoral districts by all citizens paying 
the requisite tax, varying from twenty to one hundred and 
sixty guilders. One member is chosen for every forty-five 
thousand people. There is also a council of state, appointed 
by the king, to which all legislation is submitted by the king 
before being presented to the states, and all enactments by 
the States General are submitted to the council before approval 
by the king. In each province there are similar assemblies 
having charge of local matters, made up of two houses chosen 
by the same electors. The presidents of these assemblies are 
appointed by the king. At the head of every commune is a 
communal council chosen by the people. The president of 
the council, the burgomaster, is appointed by the king for six 
years. There are eleven provinces and about 11 30 communes. 
The administration of justice is by a system of courts, at the 
head of which is the Supreme Court sitting at The Hague, 
with inferior local courts in each province and commune. 

The people of Holland enjoy complete religious liberty, 
freedom of speech, of association, and the right of trial by jury. 
No country furnishes a better illustration of the possibilities 



HOLLAND AND BELGIUM 529 

of overcoming natural difficulties by combined effort and of 
turning adverse natural conditions to advantage than Holland. 
As formed by nature the district now included in the kingdom 
was exposed to inundation from the sea; much of it so low 
and marshy as to be unfit ifor cultivation and much actually 
below sea level. The soil was not of exceptional fertility in 
general, and much of it was sandy and poor. By a system of 
dykes more than 1550 miles in length, some of which are now 
utilized as beds for railways, not only have the low marsh 
lands been protected and reclaimed, but large districts have 
been gained from the sea and converted into fruitful fields. 
Though well supplied with rivers, the interior communication 
was early supplemented by an extensive system of canals. 
These and the flooding of lowlands by cutting the dykes have 
in times past materially affected military operations and 'been 
utilized in the defense of the country. From the earliest times 
the people have found it necessary to unite their efforts in 
overcoming natural Iforces as well as in fighting other people. 
This induced a spirit of association and also led to a perception 
of the essential principles to be observed in combining for 
common enterprises and sharing the benefits. The people of 
Holland were among the leaders in modern times in the study 
and elaboration of legal principles. Grotius, 1583 to 1645, ls 
still regarded as a leading authority on international law. In 
the controversies with Charles and Philip of Spain the Hol- 
landers argued most tenaciously for the observance of their 
charters and the protection of the laws, as well as for religious 
liberty, though in the condemnation of Barneveldt and Gro- 
tius and the execution of the former, as well as in many other 
judicial outrages, they showed that the spirit of cruelty and 
intolerance was not confined to one creed or sect. Still 
throughout all the bloody persecutions there was a marked 
disposition to proceed by established forms and to execute 
only after the forms of law had been complied with. 

Combined effort was also necessary in carrying forward 
commercial enterprises, and the Dutch were among the earliest 
to take full advantage of the opening of trade with distant 
lands. By negotiations and a generally pacific policy they 



530 EVOLUTION OF GOVERNMENTS AND LAWS 

established trading posts in the East and West Indies, Asia 
and America, which afforded their merchants advantages, 
from which they made great gains and took leading rank in 
the commercial world. The wars of Holland have with but 
rare exceptions been purely defensive. In these the people 
have exhibited a degree of stubborn bravery and of brilliant 
daring never surpassed by any people. It has been in all its 
history mainly a collection of towns, and the democratic spirit, 
engendered by close contact of many people engaged in indus- 
trial pursuits, has never been successfully crushed by any 
ruling power. On the other hand the aristocratic spirit has 
grown from generation to generation among the families pos- 
sessed of great wealth, and the present constitution with its 
property qualification for voters shows the effects of this 
tendency. Commercial and industrial pursuits necessitate a 
degree of education not found among the peasant communi- 
ties of Europe prior to the eighteenth century, and the people 
of Holland of the fifteenth, sixteenth and seventeenth cen- 
turies enjoyed as large a measure of education as any in 
Europe. The extent of the domination of the Dutch is not 
fully measured by their territorial possessions. They early 
learned the mastery gained by the investment of money and 
the acquisition of legal titles to property, and Dutch capital 
has been placed in America and elsewhere in such manner as 
to still further extend the power and influence of her capital- 
ists and financiers. In perception and utilization of the advan- 
tages of combination and mutual help in peaceful enterprises 
no modern people and perhaps none of any age have excelled 
them. The educational system provides for general primary 
instruction but is not so thorough as that of Prussia. It is 
being improved. There are four universities of high rank, at 
Utrecht, Leyden, Groningen, and Amsterdam. 

The constitution of Belgium adopted in 1831 exhibits more 
marks of modern influences than that of Holland. The latter 
has its traditions and survivals of ancient organizations, while 
the former is thoroughly modern. 

The first title relates to the boundaries and division into 
provinces. The second is much like the bills of rights in the 



HOLLAND AND BELGIUM 531 

constitutions of the American states, and contains among 
others the following important provisions : 

Art. 6. "In the State there shall be no distinction of order. 
All Belgians are equal before the law ; they alone are admitted 
to civil and military employments, with such exceptions as 
may be established by law for particular cases." 

Art. 7. "Individual liberty is guaranteed. No one can be 
prosecuted, except in the cases specified by law and in the 
form which it prescribes. Save when taken in the act, no one 
shall be arrested except by virtue of an order issued by a 
judge. It shall be shown at the time of the arrest or not later 
than twenty-four hours thereafter." 

Art. 8. "No one shall be deprived against his will of the 
judge whom the law assigns him." 

Art. 9. "No penalty shall be established or enforced except 
by law." 

Art. 10. "The home is inviolable. No search shall be made 
except in cases provided for by law and in the form which it 
prescribes." 

Art. 11. "No one shall be deprived of his property except 
for public use and then only in the cases and in the manner 
provided for by law ; and a just indemnity, to be ascertained 
beforehand, shall be paid." 

Art. 14. "The freedom of religions, their public exercise, as 
well as the liberty of expressing their opinions on every mat- 
ter, are guaranteed; reserving the right of repressing crimes 
committed in the exercise of these liberties." 

Art. 15. "No one shall be compelled to observe, in any man- 
ner whatsoever, the rites and ceremonies of any (form of re- 
ligion, nor be required to observe days of rest." 

Art. 17. "Public education shall be free, every preventive 
measure is prohibited. The repression of crime shall be regu- 
lated by law. Public instruction given at the expense of the 
state shall also be regulated by law." 

Art. 18. "The press is free, no censorship shall ever be es- 
tablished, nor can writers, editors or printers be required to 
give bonds. When the author is known and resides in Bel- 
gium, the editor, printer or news agent cannot be prosecuted." 



532 EVOLUTION OF GOVERNMENTS AND LAWS 

Art. 19. "All Belgians have the right to assemble peaceably 
and without arms, conforming themselves to the laws which 
may regulate the exercise of this right, but without being 
obliged to obtain permission beforehand. This regulation 
does not apply to open air meetings, which are entirely under 
police regulation." 

Art. 20. "Belgians shall have the right to form associa- 
tions; this right cannot be suppressed by any preventive 
measure." 

Art. 22. "The secrecy of the mails shall be inviolable. The 
law shall determine who are the responsible agents in the vio- 
lation of the secrecy of the mails." 

Art. 24. "No previous authorization is necessary to begin 
suits against public officials for the acts of their administra- 
tion, with such exceptions as may be made regarding the 
Ministers." 

Title three distributes the governmental powers. 

Art. 25. "All powers emanate from the nation. They shall 
be exercised in the manner established by the constitution." 

Art. 26. "The legislative power shall be exercised collect- 
ively by the king, the House of Representatives and the 
Senate." 

Art. 27. "The initiative shall belong to each one of the 
three branches of the legislative power. But all laws relative 
to the receipts or expenses of the state, or the contingent of 
the army must be first voted by the House of Representatives." 

Art. 28. "The interpretation of the laws in an authorita- 
tive manner shall belong only to the legislative power." 

Art. 29. "To the king belong executive powers within the 
limits prescribed by the constitution." 

Art. 30. "The judicial power shall be exercised by the 
courts and tribunals." 

Sessions of the Houses are required to be public, subject to 
a right to resolve themselves into secret committees. Each 
house judges of the returns and qualifications of its members. 
Appointment by the government to a salaried position vacates 
the member's seat. A majority constitutes a quorum. An 
absolute majority is required to pass a law, and the vote must 
be taken by roll call. Members are privileged from arrest. 



HOLLAND AND BELGIUM 533 

Art. 47. "The House olf Representatives shall be composed 
of Deputies elected directly by those citizens paying the census 
prescribed by the electoral law, which shall not exceed one 
hundred florins of direct tax nor be below twenty florins." 

The number of deputies shall not exceed one for 40,000 
inhabitants and to be eligible one must be a Belgian twenty- 
five years old. The term of office is four years and one-half 
are elected every two years. Members have a monthly salary 
of two hundred florins, except that those who reside in the 
city where the session is held get no salary. The senate is 
composed of half the number of the House, elected for eight 
years, one-half every four years, but entirely renewed in case 
olf dissolution. Senators must be Belgians forty years old and 
pay at least 1000 florins direct taxes, including licenses in 
Belgium. They receive no salary. 

The constitutional powers of the king are conferred on 
Leopold of Saxe-Coburg and made hereditary in the male line 
by primogeniture. In case of failure of such heirs the king 
may name his successor, with the consent of the two houses. 
The king cannot be chief of another state without the assent 
of the two houses. 

Art. 63. "The person of the king shall be inviolahle, his 
ministers shall be responsible." 

Art. 64. "No act of the king shall have any effect, if it be 
not countersigned by a Minister who, by this act alone, makes 
himself responsible." "The king appoints ministers, confers 
grades in the army, and appoints officers of the general ad- 
ministration and foreign affairs, and such others as are au- 
thorized by law. He has no power to suspend the laws. The 
king commands the army and navy, declares war, and makes 
treaties. Treaties of commerce or imposing- obligations on 
the Belgians must be ratified by both houses." "No cession, 
no exchange, no addition of territory can take place except by 
law." "The houses shall be in session each year, for at least 
forty days," and the king may convoke them on extraordinary 
occasions and may dissolve them simultaneously or separately. 
He may remit or reduce sentences, except those against the 
ministers. He may confer titles of nobility. 



534 EVOLUTION OF GOVERNMENTS AND LAWS 

Art. 68. ''No one shall be a Minister who is not a Belgian 
by birth or who has not received supreme naturalization." 

Art. yy. "The law shall fix the civil list for the duration of 
each reign." 

Art. 78. "The king shall have no other powers than those 
which the constitution formally confers upon him and the par- 
ticular laws passed in pursuance of the same constitution." 

In case of vacancy of the throne the ministers exercise the 
kings' powers, and the two houses provide a regency during 
the minority or disability of the king. 

Art. 87. "No member of the Royal Family shall be a 
minister." 

Art. 88. "The Ministers shall have a deliberative voice in 
one or the other house only when they are members thereof. 
They shall have free access to each of the houses and must be 
heard when they demand it. The houses may require the 
presence of the Ministers." 

Art. 89. "In no case shall the verbal order or writ of the 
king relieve a minister from his responsibility." 

Impeachments of ministers are tried before both houses in 
joint session. Articles 92 to 107 inclusive relate to Judicial 
Power. 

Art. 94. "No tribunal nor civil court shall be established 
except by law. No extraordinary commissions or tribunals 
shall be established under any name whatsoever." 

One Court of Appeals for all Belgium is established with 
no original jurisdiction except in the trial of ministers. Court 
proceedings must be public, except when dangerous to public 
order or morals and formally decided so to be. Jury trials 
are required in all criminal matters. All judicial officers are 
named directly by the king. Judges are appointed /for life 
with salaries fixed by law, and prohibited from accepting any 
other salaried appointment. The powers and procedure of 
all courts civil and military are subject to regulation by law. 
Provincial and local institutions are regulated by law on the 
principles of direct election, local self-government in local 
affairs, publicity of council meetings, budgets and accounts. 

Art. no. -"No tax for the benefit of the state shall be 
established except by law." 



HOLLAND AND BELGIUM 535 

Art. in. "All state taxes shall be voted annually." 

A court of accounts, charged with the examination of the 
accounts of the general administration, with members named 
by the House of Representatives is established. Title V relates 
to the army and requires all matters relating to its numbers, 
method of recruiting and organization to be regulated by law. 

Art. 128. "Every foreigner on Belgian territory shall enjoy 
the protection accorded to persons and property, with such 
exceptions as may be established by the law." 

Art. 130. 'The constitution can neither be suspended in 
whole or in part." The constitution may be revised after a 
declaration that there is need of revision and dissolution of 
the houses by a two-thirds vote of newly elected houses. This 
constitution is clearly the most advanced of all those retaining 
a king as head of the state. In practice time has demonstrated 
the wisdom of its provisions, and Belgium with the most dense 
population of any European country enjoyed a high degree of 
prosperity and had kept clear of destructive wars until invaded 
by the Germans in August, 191 4. 

In its provision requiring authoritative interpretations of 
the law to be made only by the law-making power, it is in ad- 
vance of the American constitutions. 

In each province there is a governor named by the king and 
a provincial council elected by the people. The affairs of the 
communes are also conducted by councils chosen by the people 
for terms of six years and a burgomaster appointed by the 
king from among the members of the council. There is a 
general primary school system, carried on at the expense Of 
the communes, and secondary schools, part supported by the 
communes and others by the government. There are four 
universities, at Ghent, Liege, Brussels and Louvain. Besides 
these there are technical schools of high rank. In its benevo- 
lent and charitable institutions Belgium takes high rank and 
maintains many of various classes. 

Much attention is paid to the needs of the working classes 
and to organizations designed to assist them. There are not 
only savings banks and mutual assistance societies, but charity 
workshops are provided at Ghent, Liege and other towns, 



536 EVOLUTION OF GOVERNMENTS AND LAWS 

where indigent laboring men out of employment are relieved. 
These are not only means of temporary relief to the necessi- 
tous, but are designed as schools of instruction and to encour- 
age industry among those who otherwise might become 
criminals or beggars. There are also manufacturing schools 
for girls, where they are taught to make fabrics, etc. Liberal 
provisions are made for the care of the insane, diseased and 
infirm and for temporary relidf to the indigent. 

The judicial system consists of a court of cassation at Brus- 
sels, composed of a president general, a president of the 
chamber and fifteen councillors. It has power to revise the 
action of inferior courts and reverse their decisions for errors 
of law. It is divided into two chambers, one for civil and the 
other for criminal causes. There are three courts of appeal, 
one each at Brussels, Ghent and Liege. In the capital of each 
province is a court of assize, composed of a councillor deputed 
from one of the courts of appeals and two judges chosen from 
among the presidents and judges of the primary tribunal 
where the court is held. This court has jurisdiction of crimes 
and the trial is by a jury of twelve, chosen from a panel of 
thirty by lot. In each arrondissement is a court of primary 
jurisdiction of civil causes and misdemeanors. The number 
of judges in these varies from three to ten. There are also 
tribunals of commerce in the principal towns. Appeals are 
allowed in causes involving 2000 /francs or more. In the 
manufacturing towns there are councils of ptud-hommes, 
composed of master tradesmen and workmen, who decide dis- 
putes between masters and workmen. All judges are appoint- 
ed by the king for life and are incapable of holding any other 
office. The interests of the state are represented by advocates 
and procurators appointed by the crown. After the settlement 
of its disputes with Holland Belgium entered on a prosperous 
and peaceful career. It passed through the period of 1848, 
which shook so many European states, with but slight dis- 
turbance, and as a mining and manufacturing state has en- 
joyed a good degree of prosperity. 

Great dissatisfaction has been manifested recently over the 
provisions of the electoral law which gives to Belgians over 



HOLLAND AND BELGIUM 537 

thirty-five years of age if married or widowers paying five 
francs direct tax two votes each and to those having certain 
other property qualifications, official status or university diplo- 
mas three votes each. By this increased voting power a min- 
ority of the voters is given a majority of the votes. 



CHAPTER XXII 



Switzerland 



The territory included in modern Switzerland passed suc- 
cessively under the rule of Romans, Franks and Burgundians, 
without the development of any local national life. About 
A.D. 406 or 407 the Alemanni took possession of northern 
Helvetia, which their descendants still occupy. A little later 
the Burgundians settled about Lake Geneva and soon acquired 
mastery over southern Helvetia. The ancient Celts and Ro- 
mans were not exterminated, but remained subject to the in- 
vading tribes. The Alemanni carried with them the Germanic 
customs of land tenure, using pasture and waste lands in com- 
mon, and of determining all public matters in an assembly of 
the freemen. The rule of Charlemagne was extended over all 
Helvetia, and feudalism developed there substantially as else- 
where throughout western Europe. 

The history of Switzerland, as well as the romantic legends 
connected with its political birth, are closely connected with 
the rise of the House of Hapsburg, whose early seat was in 
the modern canton of Aargau, with estates in the cantons df 
Luzern, Schwyz and Unterwalden. From ancient times the 
Germanic tribes were accustomed to act in concert in the asser- 
tion of their rights, and the feudal system did not have the 
effect of obliterating all such organizations in the mountain 
districts of Switzerland. Prior to the controversy with the 
Hapsburgs we find the people of Schwyz and of separate parts 
of Unterwalden organized into Markgenossenschaften and 
accustomed to meet and confer with reference to their common 
interests. In 1231 Henry VII issued a charter to the men of 
Uri, making them immediate vassals of the empire, promising 
them his protection, and setting them 'free from Count Rudolf 
of Hapsburg. In 1240 a similar charter was granted by 
Frederick II to the men of Schwyz the original of which is 
still preserved and reads : 

538 



SWITZERLAND 539 

"Having received letters and messengers from you, to prove 
and make known your conversion and submission to us, we 
accede to your express desire with gracious and affectionate 
good will; we praise your submission and loyalty not a little 
in that you have shown the zeal which you have always had 
for us and the empire, by taking protection under our wings 
and those of the empire, as you are bound to do, being freemen 
who must turn to us and the empire alone. Since therefore 
you have chosen our rule and that of the empire of your own 
free will, we receive you loyally with open arms and respond 
to your sincere affection with our single minded favor and 
good will, by taking you under our special protection and that 
of the empire, so that we will never allow you to be alienated 
or withdrawn .from our sovereign rule and that of the empire." 

This charter was not recognized by the Hapsburgs as taking 
away their rights, and it it difficult to see how the Emperor 
could rightfully cut the feudal bond, which already existed 
between Rudolph and his vassals. In the controversy between 
the Emperor Frederick and the Pope the people of Schwyz 
and Uri supported the Emperor, while Rudolph supported the 
Pope. Frederick II was excommunicated and deposed. 
Count Rudolph, during the conflict, called in the aid of the 
Pope to restore his vassals to their allegiance, and built the 
fortress of New Hapsburg near Lake Luzern, from which 
his rights were enforced. 

In 1273 the fief of Schwyz passed from the Laufenburg 
line of the house of Hapsburg to that of Austria, and in the 
same year Rudolph was chosen emperor. By this chance the 
imperial sovereignty, assumed by the charter of Frederick, 
became united in the person of Rudolph with that of the house 
of Hapsburg. Rudolph governed it as an immediate posses- 
sion, and it therefore ranked as "anmittelbar." During his 
reign an edict was issued, exempting the people from answer- 
ing a summons to appear before any tribunal outside the val- 
ley, and providing that they should be answerable only to the 
emperor, his sons or the judge of the valley. Unterwalden 
was divided into a number of marks and contained the mon- 
astery of Engelberg and many free peasants. Rudolph died 



540 EVOLUTION OF GOVERNMENTS AND LAWS 

July 15, 1 29 1. On August 1 of the same year the three forest 
states concluded a league and executed their first articles of 
confederation, which, written in Latin on parchment, are 
still preserved. This document is of interest, not only as the 
work of the founders of the Swiss confederacy, but in the 
light it throws on the state of society and the conceptions of 
law and social order then entertained by the people. The fol- 
lowing is a translation : 

"In the name of God, Amen — 
Honor and the public weal are promoted when leagues are 
concluded for the proper establishment of quiet and peace. 

1. Therefore know all men, that the people of the valley of 
Uri, the democracy of the valley of Schwyz and the community 
of the mountaineers of the Lower Valley, seeing the malice of 
the age, in order that they may better defend themselves and 
their own and better preserve them in proper condition, have 
promised in good /faith to assist each other with aid, with 
every counsel and every favor, with person and goods, within 
the valleys and without, with might and main, against one and 
all who may inflict on any of them any violence, molestation 
or injury or may plot any evil against their persons or goods. 
2. And in every case each community has promised to succor 
the other when necessary, at its own expense, as far as needed 
in order to withstand the attacks of evil-doers and to avenge 
injuries, to this end they have sworn a bodily oath to keep this 
without guile and to renew by these presents the ancient 
form of the league, also confirmed by an oath. 3. Yet in 
such a manner that every man, according to his rank, shall 
obey and serve his overlord as it behooves him. 4. We have 
also promised, decreed and ordained in common council and 
by unanimous consent, that we will accept or receive no judge 
in the aforesaid valleys who shall have obtained his office for 
any price or for money in any way whatever, or who shall not 
be a native or a resident with us. 5. But if dissension shall 
arise between any of the confederates, the most prudent 
among the confederates shall come forth to settle the difficulty 
between the parties as shall seem right to them ; and whichever 
party rejects their verdict shall be an adversary to the other 



SWITZERLAND 541 

confederates. 6. Furthermore, as has been established be- 
tween them that he who deliberately kills another without 
provocation, shall iff caught, lose his life, as his wicked guilt 
requires, unless he be able to prove his innocence of said 
crime; and if perchance he escape, let him never return. 
Counsellors and defenders of said criminal shall be banished 
from the valleys, until they be expressly recalled by the con- 
federates. 7. But if any one of the confederates by day or in 
the silence of the night, shall maliciously injure another by 
fire, he shall never be considered a compatriot. 8. If any man 
protect and defend the said criminal he shall render satisfac- 
tion to the injured person. 9. Furthermore if any one of the 
confederates shall spoil another of his goods or injure him 
in any way, the goods of the guilty one, if recovered within 
the valley, shall be seized in order to pay damages to the in- 
jured person according to justice. 10. Furthermore, no man 
shall seize anothers goods for 'debt unless he be evidently his 
debtor or surety, and this shall only 'be done with the special 
permission of his judge. Moreover every man shall obey his 
judge and if necessary, must himself indicate the judge in the 
valley, before whom he ought properly to appear. 11. And if 
anyone rebels against a verdict and in consequence of his ob- 
stinacy, any one of the confederates is injured, all the con- 
federates are bound to compel the contumacious person to 
give satisfaction. 12. But if war or discord arise amongst 
any of the confederates, and one party of the disputants refuse 
to accept justice or satisfaction, the confederates are bound 
to defend the other party. 13. The above written statutes, 
decreed for the common weal and health, shall endure for- 
ever, God willing. In testimony of which at the request of 
the aforesaid parties, the present instrument has been drawn 
up and confirmed with the seal of the aforesaid three com- 
munities and valleys. 

Done Anno Domini M C C. L XXXX Primo. in the begin- 
ning of the month of August." 

A little more than two months later Uri and Schwyz en- 
tered into a separate alliance with Zurich for three years. In 
1294 an assembly of the men of Schwyz was held, at which it 



542 EVOLUTION OF GOVERNMENTS AND LAWS 

was resolved that no one should be permitted to sell or give 
land to monasteries in the valley or to strangers outside, under 
heavy penalty, and requiring the monasteries and foreign 
owners to pay taxes on their holdings the same as residents, 
and not impose them on their tenants. During the reign of 
Albrecht I the cantons were governed by native Landaman- 
nen. The critical investigations of historians have cruelly 
swept away the basis for the poetic tales of Tell and his com- 
patriots and the period when Swiss liberty is pictured as taking 
birth. In place of these thrilling tales it is said that the period 
of the reign of Albrecht I was uneventful, as far as the Swiss 
cantons are concerned. Albrecht refused to confirm the 
charters, but those of Uri and Schwyz were confirmed by 
Henry VII, and a charter was also granted to Unterwalden. 
These charters were an assertion by Henry of Luxemburg, 
as emperor, of sovereignty in opposition to the claims off the 
Hapsburgs. The question at issue was not whether the forest 
states were free or subject to the Hapsburgs, but whether 
they were "mittelbar" i.e. subject to the Hapsburgs as Haps- 
burgs or "unmittelbar" and subject only to the emperor 
whether he were a Hapsburg or other prince. 

In January, 13 14, a band of Schwyzers attacked the Abbey 
of Einsiedeln, which was under the protection of the Haps- 
burgs, and after damaging much property took away the 
monks as prisoners and drove off the cattle. This raid re- 
sulted from a controversy over the use of lands claimed by 
both parties. On Nov. 15, 131 5, a conflict occurred at Mor- 
garten between the confederates and a force under Duke 
Leopold, in which the latter sustained a crushing defeat. The 
battle was remarkable in the fact that a body of mounted and 
armored knights was defeated by peasants on foot. On Dec. 
9, 1 31 5, a meeting was held and the league of the cantons 
renewed on the same lines, with the additional provisions that : 
"those lords or that lord who shall attack one of the Lands 
with violence, or force unjust exactions; such a one or such 
men shall not be served as long as they have not given satis- 
faction to the Lands," and also "We have also agreed that 
none of the Lands nor any among the confederates (Eidgenos- 



SWITZERLAND 543 

sen), shall give an oath or pledge to a foreigner without the 
advice .of the other Lands or Confederates." Three years 
later the Duke of Austria renounced all sovereign rights over 
the states, but retained jurisdiction over his estates, and peace 
was concluded. On Nov. 7, 1332, a perpetual league was con- 
cluded between the three forest cantons and Lucern. This 
compact recognized the rights of Austria in Lucern, and of 
the Emperor over Uri, Schwyz and Unterwalden, but pro- 
vided for mutual assistance in case off aggression from any 
quarter and for arbitration of controversies among the con- 
federates. Lucern had been under ecclesiastical rule and had 
also obtained a charter. In 1291 Rudolph of Hapsburg 
bought for his sons all the possessions of the Abbey of Mor- 
bach. Through this purchase Lucern passed to the Hapsburgs, 
and in 1315 the citizens were compelled to take part in the 
battle of Morgarten against the Forest Cantons. 

At this time Zurich was a city of considerable importance 
and classed as a free city. The form of the city government 
was, however, oligarchical. The people were divided into 
classes as nobles, free burghers and working men. The gov- 
erning body was a council composed of thirty-six burghers, 
divided into three groups off twelve each, a group governing 
one third of a year. The working class had no vote nor share 
in the city government. In 1336 there was an uprising against 
the abuses of the council, led by Rudolph Brun, who, though 
of a leading family and a member of the council, became the 
champion of the common people. A new charter was formed 
called the "First Sworn Brief," which provided that the whole 
population should swear to serve and obey the Bur germeister 
in all things, without however, disparagement of the rights 
of the Emperor and the two church establishments of the 
city. The Burgermeister must swear to protect all citizens to 
the best of his ability without distinction of rich or poor. A 
new council was to be elected by two classes, the first included 
the nobles and burghers who lived on their incomes, or were 
in business as merchants, woolen-drapers, money changers, 
goldsmiths and salt dealers. These together formed an as- 
sociation, called the Konstaffel. The workingmen made up 



544 EVOLUTION OF GOVERNMENTS AND LAWS 

the second class and were grouped into thirteen guilds ac- 
cording to occupation. They were organized into companies 
and drilled for the defense of the city. Over each was a 
guildmaster, elected semiannually by the guild, who became 
ex-officio a member of the council. The Konstaffel chose an 
equal number, making the full council twenty-six in number. 
On important occasions all the citizens were assembled for 
consultation. The Bur germeister was chosen for life. Fol- 
lowing this change of organization there was trouble with 
the Count of Rappersweil and his followers, and on Feb. 23, 
1350, an attack was made on Zurich under the lead of the son 
of a Count of Rappersweil who had been slain in a fight at 
Grinau. The attempted surprise resulted in the capture of 
the young count and his principal followers, thirty-five of 
whom were barbarously executed. Brun, who had been chosen 
Bur germeister, took Rappersweil, destroyed the castle and 
devastated the possessions oif the Hapsburgs about the head 
of the lake. As a result Zurich was confronted with the 
forces of Austria and needed help. On May 1, 1351, a per- 
petual league was concluded between Zurich, Lucern, Uri, 
Schwyz and Unterwalden, each promising mutual assistance, 
but allowing the members to form separate alliances, and 
pledging the forest states to help maintain the existing form 
of government in Zurich, if requested. War followed be- 
tween the Austrian duke and the confederates. In June 
1352 Glarus joined the confederacy, Lucern not becoming a 
party to the compact. On June 27 Zug, which had been 
taken possession of by the confederates, also joined the league. 
After an indecisive campaign peace was concluded with Aus- 
tria, by which the Duke retained Glarus and Zug. 

The city of Bern was also an umnittelbar, free city, claim- 
ing charter rights under what is called the Goldene Handveste, 
claimed to have been granted by Frederick II in 12 18, allow- 
ing immunity from imperial taxation, except an annual home- 
stead tax, with the privilege of electing all its municipal 
officers, exemption from military service so far away that 
they could not return at night, and containing many other 
regulations of municipal affairs. In 1295 certain reforms 



SWITZERLAND 545 

were made. In addition to the Schultheiss and council of 
twelve, a board of sixteen was chosen from the four wards 
of the city, which was empowered to elect a common council 
of 200. Artisans, theretofore unrepresented, were eligible to 
the board and council. Guilds were forbidden. Prior to this 
time Bern had vacillated in its allegiance between Savoy and 
Hapsburg. In 1323 Bern sought and gained the alliance of 
the Forest States and in the following years waged war and 
took a number of places in the neighboring district. In June 
1339 the battle of Laupen was fought and won by the con- 
federates, and in 1342 peace was concluded, which was follow- 
ed in 1355 by the admission of Bern into the Confederation. 
A document similar to the former ones was drawn up, 
but not making a close league between the cities. Charles IV, 
having quarreled with Rudolph IV of Austria, confirmed the 
charters and leagues of the States, and in 1364 the latter re- 
covered Zug from Austria. In 1375 there was an invasion of 
a large army of mercenaries under Ingram de Courey, which 
entered Argau and laid waste the country. The attack was 
directed rather against Austria than the Swiss but, as usual, 
innocent people rather than the hostile ruler suffered. The 
people, however, rose, surprised and de/feated a large detach- 
ment and soon drove the remainder from the country. This 
was called the Gugler invasion. After a brief interval of 
peace quarrels were renewed with Austria. All the members 
of the league except the Forest Cantons and Glarus joined 
the Swabian Confederacy. Lucern refused to pay customs 
to the Austrian bailiff and received and protected peasants 
from the ducal estates. The bailiffs seat at Rothenburg was 
destroyed. Zug attacked the castle of St. Andreas, Zurich 
marched against Rappersweil and the men of Schwyz took 
Einsiedeln. A summons was sent to the Swabian cities, to 
which they made scanty response. 

In June 1386 Leopold III, who had" succeeded to the western 
possessions of the Hapsburgs, organized an expedition to 
crush the confederacy. Many noblemen of the neighboring 
country came to his aid, and he also hired several bands of 
mercenaries. With a force of 6,000, including many armored 



546 EVOLUTION OF GOVERNMENTS AND LAWS 






knights, he made a feint of an attack on Zurich, but it was his 
purpose to strike Lucern as the heart of the Confederacy. 
With overweening confidence his forces moved along, un- 
prepared for an attack, when on July 9, 1386, they were met 
at Sempach by about 1,600 men of Lucern and the Forest 
States. The battle which ensued, though not involving great 
numbers, is one of the most notable in history from the fact 
that a very inferior force of peasants and burghers, fighting 
without armor, defeated so large a iforce of armored knights 
and professional soldiers. Leopold was killed and his army 
completely routed. Some circumstances favored the Confed- 
erates. Their attack was a surprise, on ground unfavorable 
to horses, so that the knights were forced to dismount, and, 
the heat being intense, their armor was such a serious encum- 
brance as to outweigh the protection it afforded. The tale 
of the heroism of Winkelried and the share he contributed 
to the victory is a subject of controversy among historians, 
though not so thoroughly discredited as the legends of Tell. 
The results flowing from this remarkable battle were mo- 
mentous, for it finally broke the power of Austria in the 
Confederation. The men of Glarus at once rose against 
Austria and in April 1388 defeated at Nafels the army sent 
against them, though the Austrian odds were much greater 
than at Sembach. In 1389 a peace for seven years was con- 
cluded, which secured the confederates in all their possessions, 
and on July 16, 1394, it was extended for twenty years. Only 
a few months after the battle of Nafels the Swabian cities 
met a crushing defeat at the battle of Dofringen, and their 
league came to an end. 

At the head and front of the confederacy, thus /far, had 
been the men of the Forest States. Uri, Schwyz, Unterwalden 
and Glarus were still democracies of the ancient German type. 
The people assembled in the open air as the Landgemeinde. 
They chose a council to transact current business, but the 
power of ultimate decision, the sovereign authority, rested 
in the whole body of citizens, and it was their united mental 
and physical energies that produced such surprising results. 
The rule of the cities was more oligarchical in character, the 



SWITZERLAND 547 

chief executive officer and the council acting for the whole. 
Bern, the most important of the cities, was also the most 
oligarchical in its constitution. The chief magistrate, called 
the Schultheiss, and council of twelve from the aristocracy 
had held exclusive authority till the reform berfore mentioned. 
The P faff en brief, subscribed by all the confederates except 
Bern and Glarus, contained among others the following im- 
portant provisions. 1. All vassals of Austria, whether clergy, 
laity, nobles or commoners, taking abode in the confederation, 
must swear fealty to the Confederates. 2. No foreign ec- 
clesiastic, dwelling in the Confederacy, should summon others 
before foreign tribunals, except in ecclesiastical or matri- 
monial cases. 3. A priest violating this rule should be out- 
lawed. 4. The Confederates guaranteed the safety of all roads 
from the -Stub end e B ruck e on the St. Gothard route as far 
as Zurich. 

The covenant of Sempach (Sempacher brief), was executed 
in 1393 by the eight confederates, and also by Solothurn, and 
recited that, 

"Whereas they had fought and won against Austria they 
now desired to make provision for future attacks" and pro- 
vided, 1. That no confederate should break into the house of 
another with intent to plunder either in war or peace. 2. That 
the safety of merchants in persons and goods be guaranteed. 
3. Those taking part in future military expeditions were to 
stand by one another, whatever might happen, like true men, 
as also their (forefathers did. 4. Should anyone desert in war 
or break any of the rules of this covenant and his guilt be at- 
tested by at least two honorable men, he should be promptly 
punished in his person and goods, according to the law of the 
state to which he belonged. 5. The wounded were to stay by 
their comrades until all danger was past nor be considered 
deserters if unable to help. 6. Thereafter no man should be 
allowed to take plunder until the fight was at an end and the 
captains gave permission, and all spoils should be equally dis- 
tributed to every man a share. 7. All monasteries and churches 
should remain inviolate, unless the enemy took shelter in 
them. 8. Women should not be attacked unless thev warned 



548 EVOLUTION OS GOVERNMENTS AND LAWS 

the enemy by an outcry or themselves fought, in which case 
they should be punished as they deserved. 9. None of the 
contracting parties should provoke war wantonly without due 
cause or warning as provided in the various leagues. 

This compact provided no governmental machinery for 
common ends, but nevertheless was a substantial bond. It 
advanced principles of humanity, for the violation of which 
war should afford no excuse. Though by no means free from 
the savagery of the times, in their provisions for arbitrating 
disputes among themselves and mitigating the horrors off war 
the confederates exhibited a morality far in advance of the 
general spirit of the time. 

The monastery of St. Gallen, founded during the seventh 
century, had grown into a powerful ecclesiastical establish- 
ment with large estates. The abbots exercised authority 
over the estates of the monastery, while the supreme authority 
over the district was in the hands of an imperial bailiff. In 
1345 the Abbott was appointed baliff over the city of St. 
Gallen and the villages of the province. In 1377 five villages, 
united under the name of Appenzell, joined the Swabian league 
and created a council of thirteen, elected by the people. In 
1 401 an alliance between these villages, St. Gallen and other 
communities suffering from the rule of a tyrannical abbot, 
formed a league and attacked the possessions of the Abbot. 
In 1403 Appenzell was taken under the protection of Schwyz 
and received an Amman from it as chief magistrate, and pro- 
ceeded to commit further depredations on the abbot's estate. 
He gathered a considerable force, which met a crushing de- 
feat at Vogelinsegg. Again, on June 17, 1405, having called 
in the aid of Austria, an effort was made to compel submis- 
sion to the Abbot's rule, but the mountaineers were again vic- 
torious and assuming the offensive overran the whole coun- 
try southeast of the Boden See. This country they were 
unable to hold, and in 1407 they sustained a defeat. 

In 141 1 a new alliance was formed between Appenzell and 
Schwyz, with all the other members of the confederacy ex- 
cept Bern, by which, however, Appenzell occupied a subordi- 
nate position under protection of the other states. In 1412 



SWITZERLAND 549 

St. Gallen was also added to the league. In 1388 the people 
of some of the communes of upper Valais, exasperated by the 
murder of the Bishop, had inflicted a crushing defeat on 
Count Amadeus VII of Savoy and the nobility allied with 
him, and in 1403 the Bishop of Sion and the people of the 
Valais entered into "Burg und Landrecht" with Uri, Unter- 
walden and Lucern. Here it will be observed that the Bishop 
and the people were opposed to the nobles. In 1403 Uri and 
Obwalden invaded and established their authority in Ticino 
as a subject province. In 141 2 the peace with Austria was 
renewed for a further period of fifty years. In 141 5 under 
instigation of the emperor Sigismund, who was at war with 
Frederick of Austria/the members of the league attacked the 
Aargau and besieged the stronghold called the Stein. While 
the siege was being pressed, peace was concluded between the 
emperor and the duke, and the confederates were ordered to 
withdraw, but they retfused, took the Stein and divided the 
territory among the members of the confederacy. Uri how- 
ever took no share. Disputes having arisen between Schwyz 
and Zurich over the estate of the Count of Taggenburg, 
Zurich formed an alliance with the ancient enemy, Austria, 
and the confederates declared war. In a battle before Zurich 
the confederates were successful. After a brief time an 
overwhelming force of mercenaries, called the Armagnacs, 
came into the country and attacked about 1,300 of the con- 
federates near Basel on Aug. 21, 1444. A most desperate 
fight ensued, in which the latter were nearly exterminated. 
The effect otf the battle, however, was to check the advance 
of the victors. In 1450 the principle of arbitration was in- 
voked, and the Schultheiss of Bern chosen final arbiter be- 
tween the contending parties. He declared the allegiance 
between Austria and Zurich null and that by the perpetual 
league Zurich was still bound to the confederation. On the 
other hand Zurich was given back her territory, except a 
small portion of the Taggenburg estate. 

In 1474 the confederation was drawn into a war with the 
Duke of Burgundy, in which it defeated him in two great 
battles and took a great quantity of spoils. Differences hav- 



550 EVOLUTION OF GOVERNMENTS AND LAWS 

ing occurred between the Forest States and the cities, a diet 
was called to meet at Stans in Unterwalden to settle matters. 
It met in 1481 and after stormy scenes finally reaffirmed the 
Covenant of Sempach and Pfaffenbrief with an additional 
covenant against dangerous assemblies in the towns leading 
to tumults. It was further provided that the covenants should 
be sworn to every five years. In 1499 the confederates be- 
came involved in a war with the Emperor. Alfter a brief 
struggle the matters in dispute were referred to arbitration, 
and from that time the confederation became practically in- 
dependent, though not formally recognized as being so. In 
1 500 Basel and Schaffhausen were received into the confeder- 
ation as the eleventh and twelfth members. The Swiss had 
reached the stage of a recognized military power, and Swiss 
mercenaries were eagerly sought by European potentates. 
The confederation also entered upon a struggle with the 
French King for Italian possessions, which resulted in their 
defeat at Morignano in 151 5. Following this war Appen- 
zell was admitted into the confederation as the thirteenth 
state. Though the confederation had waged such successful 
wars, it was still without any central government. All con- 
cert of action was attained by conferences of representatives 
of the different states. The diets, which were held by dele- 
gates, were not strictly legislative or sovereign bodies, but 
rather assemblies of ambassadors, who could only act in ac- 
cordance with instructions. Nevertheless the country does 
not seem to have suffered greatly from the want of a stronger 
government. Common needs and purposes formed a stronger 
bond of union than any accepted system would under other 
circumstances. No error is more common or more harmful 
than that the acceptance of an official system necessarily adds 
greatly to the welfare of the people. A government is not 
firmly established until the people generally are educated to 
regard it as having rightful authority and to yield obedience 
to the rules and principles on which it is founded. When this 
condition is attained, the great majority of the people observe 
and obey these rules and principles without the direct appli- 
cation of the power off governing agencies. Compulsory 



SWITZERLAND 551 

measures are only required for the minority who refuse com- 
pliance. The bond of the feudal system was the oath of th» 
vassal to serve his lord and the promise of the lord to protect 
the vassal. When the relation was entered into, its obligations 
were distinctly taught and assumed as a personal duty, de- 
liberately accepted, and to the performance of which the vas- 
sal was bound by his oath. In the absence of the compact or 
of any accepted relation, the vassal would have had the same 
natural right to lead and command as the lord, and in a com- 
pany of freemen would as often be chosen by his fellows to 
do so. 

The peculiarity off the Swiss confederation, distinguishing 
it from most if not all other confederations, was that it was 
an Eidgenossenschaft, an oath bound association, in which 
the individuals composing the democratic states entered into 
a written compact, agreeing to do certain things for mutual 
protection, and to be bound by certain rules which were 
deemed conducive to the general welfare, and took an oath 
that they would perform the compact. This was in effect an 
oath of mutual support in defense of their rights, instead of 
an oath of fealty to an overlord. The bond which thus tied 
equals to each other proved in the early struggles even stronger 
than the feudal bond. It was superior in its moral principles. 
It appealed both to the conscience and to the intelligence of 
all the freemen, and the voluntary compliance yielded to the 
compact was such as to make a few peasants and burghers the 
superiors in war of the feudal lords of Austria, and even of 
Burgundy, France and the empire. It is also worthy of notice 
that the leading necessity for arbitrary central authority, 
vested in one ruler, is to raise, equip and command armies in 
war. The need of a single head, vested with power to decide 
and act promptly, has been almost universally recognized, yet 
the superiority of the free confederates over the feudal lords 
and their retainers was demonstrated over and over on many 
hard fought battle fields. There is much similarity between 
these early contests and those of the Greeks against the 
Persians. Perhaps the most significant fact connected with 
this matter is, that a (force of men fighting a defensive war, 



552 EVOLUTION OF GOVERNMENTS AND LAWS 

which each man regards as his war, and when he has been 
educated to regard it as his religious duty to do his utmost for 
himself and his sworn comrades, is superior to another force 
of equal numbers which merely o'beys a constituted leader, 
and that education in and voluntary assumption of social 
duties are of the highest value in the organization of states. 

Among the most noted leaders of the reformation was 
Ulrich Zwingli. He was quite as much a political as a reli- 
gious reformer, and he preached vigorously against the sin of 
fighting the battles of despots for pay. Zurich accepted his 
doctrines, and the other Swiss cities inclined toward the re- 
formation. The Forest Cantons remained Catholic. War 
between the opposing factions threatened in 1529, but a peace 
was concluded which allowed religious (freedom to each state, 
not to each person. In 1 531 Zurich having cut off supplies of 
food from the Forest States and suppressed the monastery of 
St. Gallen and appropriated its lands, civil war broke out and 
Zurich was defeated. A second peace followed, which rec- 
ognized the right, not only of states, but of each parish or 
commune, to determine its form of worship. The League 
split into two camps. The Catholics held Uri, Schwyz, Un- 
terwalden, Lucern and Zug, which in 1529 as the "Christliche 
Vercinigung" had entered into an offensive and defensive 
alliance with the King of Hungary, and Freiburg, Solothurn, 
Inner Rhoden, Appenzell and St. Gall, which gave them seven- 
teen out of a total of twenty-nine members of the diet as then 
constituted. The reformers held Zurich, Bern, Basel Schaff- 
hausen, Ausser Rhoden (Appenzell) with Graubunden. 
Thurgau and Glarus were divided. Prior to the reformation 
Geneva was a republican city, over which the count of Savoy 
and the Bishop claimed seigniority. In 15 19, at the instiga- 
tion of the republican elements in the city, a temporary al- 
liance was formed with Freiburg and Bern and another in 
1526 for twenty-five years. In 1536 by the aid of an army 
from Bern, Geneva was liberated from the rule of the Bishop 
and Count of Savoy. The people had been converted to the 
principles of the reformation, and a new alliance was con- 
cluded. Geneva became the field of the labors of William 



SWITZERLAND 553 

Farel and John Calvin, and under their leadership adopted a 
rigid and intolerant system, which was enforced with the 
burning af Michael Servetus at the stake for heresy and other 
cruelties. Secret spies and torture were called to the aid of 
those who professed a reformation of the Church of Rome. 

In October 1586 the Golden League was formed by the 
Catholic states of Uri, Schwyz, Unterwalden, Lucerne, Zug, 
Freiburg and Solothurn for the maintenance of the true faith 
in their territories and engaging to help each other, if at- 
tacked by external enemies, notwithstanding any other league 
new or old. In 161 2 Zurich and Bern entered into an al- 
liance with the Margrave of Baden. Though religious dis- 
sensions had disrupted the Confederation, unlike their 
co-religionists throughout Germany, the opposing factions 
did not join in the Thirty Years' war, but maintained an atti- 
tude of neutrality. They were unable to escape some compli- 
cations with Austria, which conquered the Prattigan, and the 
Spanish and French in the Valtellaine. 

The treaty of Westphalia, concluded in 1648, terminated 
the Thirty Years' war and recognized the independence of the 
Confederation in the following language, " Aforesaid city of 
Basel and the remaining Cantons of the Helvetians are in 
possession of as good as full freedom and exemption from 
the empire and are in no way subject to the Dikasterien and 
courts of the empire." 

The hiring of mercenary troops to foreign princes, the 
payment of pensions to the states for the privilege otf hiring 
mercenaries, the rulership of the Aargau, Thurgau and other 
lands taken by force of arms and ruled as dependencies by the 
cantons, the exercise of authority by representatives of the 
states, by bailiffs and captains, tended to develop the aristo- 
cratic spirit, not only in the cities, but in the Forest Cantons 
as well. With more intercourse and closer relations with 
neighboring states and with the growth of individual for- 
tunes social distinctions and oligarchical tendencies developed. 
The democratic cantons exercised over their dependencies the 
rights of the feudal lords whom they had displaced, and with 
no less rigor. In 1653 the peasant's war broke out in the 



554 EVOLUTION OF GOVERNMENTS AND LAWS 

Entlebuch, a valley subject to Lucern, and spread over the 
whole Confederacy. Popular assemblies were held and pro- 
tests made against the tyrannies of the local governments. 
Armed encounters followed between the peasants and the 
authorities, resulting in the defeat olf the former and the 
barbarous execution of Leuenberger and Schibi their prin- 
cipal leaders. 

In 1663 Louis XIV of France renewed a treaty, first made 
with the Confederation in 1602, and thereby obtained their 
pledge to supply him at least 6,000 and not more than 16,000 
men annually in return for 3,000 francs to each canton an- 
nually, regular pay for the mercenaries and certain commercial 
privileges. The aristocratic tendencies were most marked in 
the cities of Bern, Lucern, Freiburg and Solothurn, where 
there were no guilds sharing in the government as at Zurich, 
Basel and Schaffhausen. They were promoted there as every- 
where by the principle of the inheritance of wealth and power. 
The burghers, who administered the municipal government, 
refused to admit new members to burgher rights, and a small 
class secured possession of all the offices and adopted the 
principle of cooptation, by which they supplied all vacancies by 
appointment and without any consultation with the body of 
the citizens. In Bern olf 360 burgher families eighty held all 
the offices. 

It is most remarkable that Swiss territory should have be- 
come the dwelling place of so many of the great men of the 
eighteenth century, Voltaire, Rousseau, Gibbon, Madame de 
Stael, Lavater and Pestalozzi. On Swiss soil there was an 
awakening to the falsity of the claim of the descendants of 
robber barons to rule by right divine, and to the manifest 
right of all men to liberty, not only of conscience, but of con- 
duct. Switzerland, though not the field of the great struggle 
for liberty which took form in the last part of the eighteenth 
century, was a school in which the principles governing social 
relations were studied with great profit and profound in- 
fluence on all western Europe. In 1759 there was formed the 
Oekonomische Gesellschaft at Bern, said to have been the 
first agricultural society in Europe. It promoted improved 



SWITZERLAND 555 

systems of agriculture. In 1762 the Helvetian society, with 
the Baths of Schinznach as the place of its meetings, was 
formed for the study and discussion of social problems and 
to promote reforms in public affairs. 

There were various attempts to gain relief from the tyranny 
of the oligarchies, which had developed not only in the cities 
but in the Forest Cantons, in Appenzell against Landammann 
Zwellweger, in Zug against Zur Lauben, in Schwyz against 
the family of Reding, whose wealth, acquired in foreign 
service, was made the basis off claims of right to rule at home. 
In Geneva there were many revolts and efforts to throw off 
the rule of the oligarchy. 

In Bern the democratic leader Henzi and two companions 
were executed, as was Waser in Zurich. The lands, wrested 
from feudal lords by the Confederates and held as subject 
districts, revolted against the oppression of their rulers : 
Wilchingen, in Schafhausen, Entlebuch, the Vaud, the Tog- 
genburg and Val Levantina, all strove for relief, but without 
success. Those claiming an hereditary right to take the pro- 
ceeds of the labors of others without compensation main- 
tained their claims by force and visited barbarous punishment 
on those who asserted their natural rights. 

In 1790 the Helvetian Club at Paris was formed by exiles 
from Swiss districts and issued pamphlets teaching the rights 
of man, which they succeeded in circulating in spite of the 
efforts of the Cantonal authorities to suppress them. Dis- 
turbances soon followed. In 1790 Lower Wallis rose against 
the upper district. In 1792 the "Raurician" republic opposed 
the prince bishop of Basel and became the French department 
of Mont Terrible. Napoleon sought an occasion for the oc- 
cupation of Swiss Cantons, and when exiles from Vaud and 
Freiburg called in the directory to protect the liberties which 
had been guaranteed by France, an excuse was found and 
troops were sent into Mulhausen, Bienne and the territory of 
the Bishop of Basel and into Vaud where the "Lemanic Re- 
public" was proclaimed. In 1798 a large French army en- 
tered the country and took Bern, which alone offered serious 
resistance and yielded only after a decisive battle. After this 



556 EVOLUTION OF GOVERNMENTS AND LAWS 

all the other states yielded to French dictation. On April 12, 
1798, a new constitution, called the Helvetic, was promulgated 
by authority of the French Directory, which declared the 
body of all the citizens sovereign, established a representative 
government, guaranteed religious liberty and (freedom of the 
press, abolished all hereditary titles and powers and all feudal 
tenures of land. Two legislative bodies were created, a Sen- 
ate of four delegates from each canton and a Grand Council 
of representatives elected by the people. The executive power 
was conferred on a Directory of five members, to be chosen 
by the Senate and Council jointly. Four ministers at the head 
of administrative departments were provided for. A supreme 
court, consisting of one judge from each canton, was created. 
Each canton was given a prefect, a board of administration 
and a local court. All distinctions between the cantons and 
their subject districts were abolished, and the people of all 
Switzerland were placed on an equal ifooting. This constitu- 
tion was accepted by all but the three forest cantons, which 
resisted, but a strong French army after severe fighting en- 
forced submission and on July 14, 1798, deputies from the 
eighteen cantons met in Aargau and took the oath of allegiance 
to the constitution. Nidwalden alone refused to allow its 
citizens to take the oath and made a desperate resistance, ex- 
hibiting the ancient Swiss spirit, but was overcome by superior 
numbers. Much new legislation was passed by the Senate 
and Council. There was an abolition of all the vexatious 
trade restrictions between the cantons with which they were 
burdened, and free trade was established throughout the re- 
public. In August, 1799, an offensive and defensive alliance 
was formed with France. During that year Switzerland be- 
came a battleground for the contending armies of France, 
Austria and Russia, and suffered much from their presence. 
The Helvetic constitution did not prove acceptable to the peo- 
ple, and divers new drafts were proposed in 1801 and 1802. 
In 1802, following the withdrawal o/f French troops, there 
were uprisings against the authorities, and in the ensuing 
conflicts the insurgents were generally successful. Napoleon 
put an end to the strife by issuing a proclamation inviting the 



SWITZERLAND 557 

Swiss people to send delegates to confer with him concerning 
a new constitution. On this call about sixty delegates went 
to Paris, and on Feb. 19, 1803, a new constitution, styled the 
Act of Mediation, was signed and promulgated. It was a 
compromise between the old confederation and the Helvetic 
constitution. It reinstated the old Diet with enlarged powers, 
and restored the sovereignty of the cantons. Six cantons 
were selected, namely Freiburg, Bern, Solothurn, Basel, Zu- 
rich and Lucern in which the diet was to be held in annual 
rotation, the Schultheiss or Bur germeister of each capital be- 
coming in turn President of the confederation with the title 
of Landamann of Switzerland. Each canton sent one dele- 
gate to the Diet, but cantons having more than 100,000 in- 
habitants had two votes. The cantons separately had all 
powers not delegated to the Federal authorities. The Lands 
gemeinde in the democratic cantons were restored, and in 
the other cantons the government was put in the hands of 
the great council as the legislative body and the small council 
as the executive, and a property qualification required for 
voters and officials. No canton was allowed to form a sepa- 
rate political alliance. Full liberty was given all citizens to 
settle in any canton, and no privileged class, except as stated, 
or subject lands were allowed. With the downfall of Na- 
poleon Switzerland, in common with the rest of Europe, 
exhibited reactionary tendencies. On Dec. 22, 181 3, Bern 
declared the Act of Mediation void and reinstated the sur- 
viving members of the old council, who had served before 
the revolution. A week later the Diet also denounced the Act, 
and the work of forming a new constitution was undertaken, 
but was not completed till 181 5, under the supervision of the 
great powers, which, at the Congress of Vienna on Nov. 
20, 181 5, guaranteed Switzerland independence and the in- 
violability of her territory. On Aug. 7, 181 5, the twenty-two 
states comprising the confederation signed the new Bundes- 
vertrag. Valais, Geneva and Neuchatel were now admitted 
as states on an equal footing. The new pact regulated the 
contributions of men and money to the Confederation, and 
provided a Federal Board of Arbitration to settle internal dis- 



558 EVOLUTION OF GOVERNMENTS AND LAWS 

putes. The Diet was made of delegates limited to one vote 
for each canton. Bern, Zurich and Lucern were made capital 
cities in rotation. The office of Landamann was abolished 
and no central authority was created to enforce the decrees of 
the Diet. Church and monastic establishments were guar- 
anteed protection. Following the adoption of this scheme of 
loose confederation the cantons returned to much of their 
ancient system. Censorship of the press and the mercenary 
system are among the worst of the results of the reaction. 

The spirit which brought about the French Revolution of 
1830 was also at work in Switzerland, and meetings were held 
in many of the cantons, demanding reforms and increased 
respect for popular rights. In that year nine of the cantons 
revised their constitutions in response to these demands. Dur- 
ing the following year there were conflicts in Basel, Schwyz 
and Neuchatel, resulting in the first named in a division into 
two half cantons. Attempts to revise the federal constitution 
failed. On March 17, 1832, Luzern, Zurich, Solothurn, St. 
Gallen, Aargau and Thurgau joined in what was styled the 
Siebenerkonkordat, guaranteeing the maintenance of the con- 
stitutions of the members. On November 14 the following 
conservative cantons Uri, Schwyz, Unterwalden, Baselstadt, 
Neuchatel and Valais, withdrew from the diet and united in 
a league ; thus dividing the Confederation into hostile sections. 
From this time on dissensions between the reformers and 
conservatives, the Catholics and the Protestants, continued, 
the cantons arranging themselves in opposing factions ac- 
cording to the prevailing sentiment in each. In 1843 Luzern, 
Uri, Schwyz, Unterwalden, Zug, Freiburg and Valais, Catho- 
lic states, formed the Sonderbund and in December 1845 
signed an Act of Secession, appointed a council of war, and 
pledged each other mutual support in case of attack. War 
did not result till the fall off 1847 an d was then short and 
conducted with a most commendable effort to reduce the 
brutalities of war to a minimum. Dufour, the commander of 
the federal forces, was both a humane man and an able, ener- 
getic general. A campaign of twenty days settled the issue in 
favor of the Federal side. On November 30, after the war 



SWITZERLAND 559 

was over, the French ambassador presented a collective note 
of the great powers, offering mediation between the contend- 
ing factions, but the offer was rejected on the ground that the 
issue had already been decided. In 1848 a constitution was 
adopted. Under it a man settling in a canton other than 
that of his birth acquired citizenship after two years, but was 
excluded from communal rights. A Federal legislature was 
established, made up o)f two houses, the Stande Rath, com- 
posed of two deputies from each canton, and the national 
council, elected for terms of three years, one for every 20,000 
population or major fraction. The Bundesrath of seven mem- 
bers elected by the assembly, was the executive head, and 
their chairman was styled President of the confederation. 
The Bundesgericht of eleven members was the supreme court. 
All enlistments of mercenaries in foreign service were forbid- 
den by vote of the assembly. 

On Jan. 31, 1874, a revised constitution was adopted by the 
two houses and on May 29 was ratified by vote of the people. 
It is unique in so many of its provisions that it is well worth 
careful study. The first seventy articles define the purposes 
of the Confederation, the relation of the cantons to it and 
to each other, and many other matters difficult to summarize. 

"Article 1. The peoples of the twenty sovereign cantons of 
Switzerland united by this present alliance namely" (names) 
form in their entirety the Swiss Confederation. 

"Art. 2. The purpose of the Confederation is to secure the 
independence of the country against foreign nations, to main- 
tain peace and order within, to protect the liberty and the 
rights of the confederates and to foster their common 
welfare." 

"Art. 3. The Cantons are sovereign, so far as their sov- 
ereignty is not limited by the Federal Constitution, and as 
such they exercise all the rights which are not delegated to 
the federal government." 

"Art. 4. All Swiss are equal before the law. In Switzer- 
land there are neither political dependencies nor privileges of 
place, birth, persons or families." 

Art. 5. Guarantees to the cantons and their citizens 



560 EVOLUTION OF GOVERNMENTS AND LAWS 

their territory, liberty and constitutional rights. Article 6 
requires the cantons to ask the Confederation to guarantee 
their constitutions, to be accorded on condition that they are 
not repugnant to the Federal Constitution and have been 
ratified by the people. Article 7 prohibits the cantons from 
forming separate alliances, though conventions with regard 
to legislative, administrative and judicial subjects are allowed 
subject to approval of the Federal authorities. 

"Art. 8. The Confederation has the sole right of declar- 
ing war, of making peace and of concluding alliances and 
treaties with foreign powers, particularly treaties relating to 
tariffs and commerce." 

Art. 9. Preserves the rights of the cantons to make 
treaties respecting public property and border police inter- 
course, not conflicting with the rights of the confederation or 
other cantons. Article 10 relates to intercourse with foreign 
governments. "Art. 11. No military capitulations shall be 
made." 

Art 12. Prohibits officials from receiving pay, gifts or 
titles from foreign governments. 

"Art. 13. The Confederation has no right to keep up a 
standing army. No Canton or half Canton shall, without the 
permission of the Federal government, keep up a standing 
force of more than three hundred men ; the mounted police 
not included in this number." 

"Art. 14. In case of differences arising between Cantons 
the States shall abstain from violence and from arming them- 
selves; they shall submit to the decision to be taken upon 
such differences by the Confederation." 

Arts. 15, 16 and 17 provide for mutual aid in case of 
foreign attack or internal disturbance. 

Article 18 binds every Swiss to perform military service 
and Arts. 19-20-21 and 22 provide for the organization of 
the army under the general control of the Confederation, but 
entrusting certain duties to the cantonal officials. 

Art. 23 authorizes the Confederation to construct public 
works which concern Switzerland or a considerable part of 
it. Art. 24 gives the Confederation superintendence of dikes 



SWITZERLAND 561 

and forests in the upper mountain region. Art. 25 gives like 
power to protect game. 

"Art. 26. Legislation upon the construction and operation 
of railroads is in the province of the Confederation." 

"Art. 27. The confederation has the right to establish 
besides the existing Polytechnic School a Federal University 
and other institutions of higher instruction, or to subsidize 
institutions of such nature. The Cantons provide for primary 
instruction which shall be sufficient, and shall be placed ex- 
clusively under the direction of the secular authority. It is 
compulsory and in the public schools free. The public schools 
shall be such that they may be frequented by the adherents 
of all religious sects without any offense to their conscience 
or belief. The Confederation shall take the necessary mea- 
sures against such Cantons as shall not fulfill their duties." 

"Art. 28. The customs are in the province of the Con- 
federation. It may levy export and import duties." Article 
29 requires import duties to be low as possible. Art. 30 gives 
the proceeds of customs to the Confederation, out of which 
certain cantons are given allowances for Alpine roads. 

Art. 31 guarantees free trade throughout the Confedera- 
tion, except as to articles subjected to state police supervision 
and the salt and gunpowder monopoly. Art. 32 gives the 
cantons power to collect duties on wine and spirits under 
certain restrictions. Art. 32, amended in 1885, authorizes 
the Confederation to regulate the manufacture and sale of 
alcohol. Art. 7,3 permits the cantons to regulate the granting 
of certificates to practice a liberal profession. 

"Art. 34. The Confederation has power to enact uniform 
provisions as to the labor of children in factories, and as to 
the duration of labor fixed for adults therein, and as to the 
protection of workingmen against the operation of unhealthy 
and dangerous manufactures. The transactions of emigra- 
tion and guarantees inviolable secrecy of letters and telegrams, 
by the State, are subject to Federal supervision and 
legislation." 

"Art. 34 bis. (Amendment of Oct 26, 1890). The Con- 
federation will by law establish invalid and accident insurance, 



562 EVOLUTION OF GOVERNMENTS AND LAWS 

having regard for existing invalid funds. It may declare 
participation obligatory for all or for special classes of the 
population." Art 35 Forbids gaming houses. 

Art. 36 places posts and telegraphs under the Confedera- 
tion and guarantees inviolable secrecy of letters and telegrams. 
Art. 37 gives the Confederation general supervision over 
roads and bridges and Art. 38 gives it exclusive control of 
coinage. 

"Art. 39. The Confederation has the power to make by 
law general provisions for the issue and redemption of bank 
notes, but it shall not create any monopoly for the issue of 
banknotes, nor make such notes a legal tender." 

Art. 40. The Confederation fixes and the cantons enforce 
the standard of weights and measures. Art. 41 makes manu- 
facture and sale of gunpowder a state monopoly. Art. 42 
states the sources of revenue of the Confederation. 

"Art. 43. Every citizen of a canton is a Swiss citizen." 
A Swiss settled in a canton other than that of his birth enjoys 
full political rights, but does not share in the municipal and 
corporate property, unless by act of the canton. 

"Art. 44. No Canton shall expel from its territory one 
of its own citizens, nor deprive him of rights, whether ac- 
quired by birth or settlement." Naturalization is regulated 
by federal legislation. Art. 45 gives every Swiss citizen, 
except criminals and paupers, right to settle anywhere in 
Swiss territory on a certificate of origin. Arts. 46 and 47 
subject residents to the jurisdiction of the place of domicil 
and provide for federal legislation as to temporary settle- 
ments and to prevent double taxation. 

"Art. 48. A federal law shall provide for the regulation 
of the expenses of the illness and burial of indigent persons 
amenable to any Canton, who have fallen ill or died in an- 
other Canton." 

"Art. 49. Freedom of conscience and belief is inviolable." 
No person can be compelled to take part in religious services 
or pay taxes to a religious body to which he does not belong. 
Art. 50 gives the public authorities supervision of religious 
bodies with power to determine their controversies. Art. 51 



SWITZERLAND 563 

excludes the order of Jesuits from Switzerland and authorizes 
the exclusion of any other dangerous order. 

"Art. 52. The foundation of new convents or religious 
orders, and the reestablishment of those which have been 
suppressed are forbidden." 

Art. 53 makes civil status and records thereof and control 
of places of burial subject to civil authority. 

Art. 54 secures freedom in contracting marriage and gives 
the wife the citizenship of her husband. 

Art. 55 guarantees freedom of the press, but allows the 
suppression of abuses by the cantons. 

Art. 56 allows freedom in forming associations except for 
unlawful purpose. 

"Art. 57. The right of petition is guaranteed." 

"Art 58. No person shall be deprived of his constitu- 
tional judge. Therefore no extraordinary tribunal shall be 
established. Ecclesiastical jurisdiction is abolished." 

Art. 59. Suits for personal claims must be brought in the 
domicile of a resident solvent debtor. 

"Imprisonment for debt is abolished." 

"Art. 60. All the Cantons are bound to treat the citizens 
of the other confederated states like those of their own state 
in legislation and in all judicial proceedings." 

"Art. 61. Civil judgments definitely pronounced in any 
Canton may be executed anywhere in Switzerland." 

Arts. 62 and 63 abolish exit duties on property. 

Art. 64. The Confederation has power to make laws on 
legal competency, commerce, copyright inventions and bank- 
ruptcy. 

"The administration of justice remains with the Cantons, 
save as affected by the powers of the Federal Court." 

"Art. 65. No death penalty shall be pronounced for a 
political crime." 

"Art. 66. The Confederation by law fixes the limits within 
which a Swiss citizen may be deprived of his political rights." 

Art. 67 gives the Confederation power to regulate extra- 
dition from one canton to another. 

"Art. 68. Measures are taken by Federal law for the 



564 EVOLUTION OF GOVERNMENTS AND LAWS 

incorporation of persons without country and for the pre- 
vention of new cases of that nature." 

"Art. 69. Legislation concerning measures of sanitary 
police against epidemic cattle disease, causing a common dan- 
ger, is included in the powers of the Confederation." 

"Art. 70. The Confederation has power to expel from its 
territory foreigners who endanger the internal or external 
safety of Switzerland." 

"Art. 71. With the reservation of the rights of the people 
and the Cantons, the supreme authority of the Confederation 
is exercised by the Federal Assembly which consists of two 
sections or councils to-wit : 

A. The National Council. 

B. The Council of States." 

Arts. 72 to 79 provide that the National Council shall be 
composed of one representative for each 20,000 persons or 
major fraction and gives at least one to each canton and half 
canton of a divided one. All Swiss twenty years of age may 
vote and are eligible to election. The term is three years. 
The Council chooses from its members a President and Vice- 
President for each session. 

Arts. 80 to 83 relate to the Council of States which con- 
sists of two representatives from each canton, and chooses 
its President and Vice-President for each session. 

Arts. 84 to 94, give the Federal Assembly legislative power 
over the matters within the control of the Confederation. A 
majority of each Council is a quorum and a majority of those 
voting is required. 

"Art. 89. Federal laws, enactments, and resolutions shall 
be passed only by the agreement of the two Councils. 

"Federal laws shall be submitted for acceptance or rejection 
by the people, if the demand is made by 30,000 voters or by 
eight Cantons. The same principle applies to federal reso- 
lutions which have a general application, and which are not 
of an urgent nature." 

Articles 90 to 94 relate to elections, voting of members of 
the Council and the introduction of measures and sittings of 
the Council. 



SWITZERLAND 565 

"Art. 95. The supreme direction and executive authority 
of the Confederation is exercised by a Federal Council, com- 
posed of seven members." 

Articles 96 to 104 provide that members of the Federal 
Council are chosen by the Councils in joint session for a term 
of three years, and they also choose from the Council a Presi- 
dent and Vice-President for one year. Members are dis- 
qualified from holding any other office or following any other 
pursuit. President and Vice-President cannot hold two years 
in succession. Four members of the Council make a quorum. 
Members have the right to speak but not to vote in either 
house. 

"Art. 105. A Federal Chancery, at the head of which is 
placed the Chancellor of the Confederation, conducts the 
secretary's business for the Federal Assembly and the Fed- 
eral Council." The Chancellor is chosen by the Assembly for 
three years. 

"Art. 106. There shall be a Federal Court for the ad- 
ministration of justice in federal concerns. 

"There shall be, moreover, a jury for criminal cases." 

"Art. 107. The members and alternates of the Federal 
Court shall be chosen by the Federal Assembly, -which shall 
take care that all three national languages are represented 
therein. 

"A law shall establish the organization of the Federal Court 
and of its sections, the number of judges and alternates, 
their term of office and their salary." 

Arts. 108 to 114 relate to the organization, powers and 
jurisdiction of the court, which extends to all cases in which 
the Confederation is a party, between cantons and between 
cantons and persons or corporations, involving the status of 
persons, and important cases which the parties agree to submit 
to it, and of political crimes and against officials acting under 
federal authority and over questions of conflicting jurisdic- 
tion and constitutional law. 

"Art. 118. The Federal Constitution may at any time be 
wholly or partially amended." 

"Art. 119. Complete Amendment is secured through the 
forms required for passing federal laws." 



566 EVOLUTION OF GOVERNMENTS AND LAWS 

"Art 120. When either Council of the Federal Assembly 
passes a resolution for the complete amendment of the Federal 
Constitution and the other Council does not agree; or when 
fifty thousand Swiss voters demand the complete amendment, 
the question whether the Federal Constitution ought to be 
amended is, in either case, submitted to a vote of the Swiss 
people, voting yes or no." 

Art. 121. (Amendment of July 7, 189 1). 

"Partial amendment may take place through the forms of 
Popular Initiative, or of those required for passing federal 
laws. 

"The Popular Initiative may be used when fifty thousand 
Swiss voters present a petition for the enactment, the aboli- 
tion or the alteration of certain articles of the Federal Con- 
stitution. 

"When several different subjects are proposed for 
amendment or for enactment in the Federal Constitution by 
means of the Popular Initiative, each must form the subject 
of a special petition. 

"Petitions may be presented in the form of general sugges- 
tions or of finished bills. When a petition is presented in the 
form of a • general suggestion, and the Federal Assembly 
agrees thereto, it is the duty of that body to elaborate a partial 
amendment in the sense of the Initiators, and to refer it to 
the people and the Cantons for acceptance or rejection. If 
the Federal Assembly does not agree to the petition, then the 
question of whether there shall be a partial amendment at all 
must be submitted to the vote of the people, and if the ma- 
jority of Swiss voters express themselves in the affirmative, 
the amendment must be taken in hand by the Federal As- 
sembly in the sense of the people. 

"When a petition is presented in the form of a finished bill, 
and the Federal Assembly agrees thereto, the bill must be re- 
ferred to the people and the Cantons for acceptance or re- 
jection. In case the Federal Assembly does not agree, that 
body can elaborate a bill of its own, or move to reject the 
petition, and submit its own bill or motion or rejection 
to the vote of the people and the Cantons along with the 
petition." 



SWITZERLAND 567 

"Art. 122. A Federal law shall determine more precisely 
the manner of procedure in popular petitions and in voting 
for amendments to the Constitution." 

"Art. 123. The amended Federal Constitution, or the 
amended part thereof, shall be in force when it has been 
adopted by the majority of Swiss citizens who take part in 
the vote thereon and by a majority of the States. 

"In making up a majority of the States the vote of a Half- 
Canton is counted as half a vote. 

"The result of the popular vote in each Canton is con- 
sidered to be the vote of the State." 

In several particulars the development of the governmental 
system of Switzerland is unique. From the first advent of its 
Teutonic population there has been a settled distrust of ar- 
bitrary power and a disinclination on the part of the demo- 
cratic communities to submit, for any purpose, to the dicta- 
tion of a central authority. The cantons have manifested 
a willingness to combine for defense against Austrian and 
other rulers, who sought to impose their authority, but after 
success have preferred to retain freedom from any superior 
authority. The first real union under a central authority 
was forced on them by France, but since then the remodelled 
government is the product of Swiss genius. They have had 
to deal with people differing in language, ancestry and cus- 
toms, separated by natural barriers and dwelling under a great 
variety of conditions. They have had democratic agricul- 
tural cantons and oligarchical cities, monastic establishments 
and Calvinists, cantons claiming proprietary rights over other 
districts, and a vast complication of petty trade restrictions 
and vexatious regulations imposed by each district for local 
advantage, to contend with. The inherent difficulties of es- 
tablishing a system just and satisfactory to the German, 
French and Italian elements, to urban and rural communities, 
have not been less than those presented to statesmen elsewhere. 
They have also been subjected to external influences, which, 
to a weaker race, would have been irresistible, but which they 
with a moral and physical courage never excelled by any 
people have successfully overcome. Against the intrigues of 
the great powers they have presented a superior code of 



568 EVOLUTION OF GOVERNMENTS AND LAWS 

morals and superior devotion to the true interests of their 
country. 

The initiative and referendum, by which the people retain 
in their own hands at all times power to veto the acts of their 
representatives, to compel action by them on matters they 
will not undertake, and to amend even the fundamental law 
whenever they see fit, is a natural outgrowth of the heredi- 
tary distrust of delegated power. The Swiss system is clearly 
the most democratic, and gives the most unrestricted play to 
the law of social growth and progress of any ever devised. 
At the same time the process which is marked out for legisla- 
tion insures full consideration of the question acted on, and 
guards against the dangers of popular passions perhaps as 
well as any known system. These dangers are usually greatly 
magnified. Unjust systems, by which a few profit and many 
suffer, are always built behind the protection of the govern- 
mental system. There is little occasion for fearing that such 
systems will be established as a result of a popular vote, but, 
whenever clearly pointed out, an existing one is likely to be 
more quickly gotten rid of by the direct action of the people 
than in any other manner. It is almost axiomatic that the 
deliberate judgment of the whole people, on any matter of 
general interest, is more likely to be right than that of a 
less number, entrusted with powers and privileges distin- 
guishing them from the multitude and viewing the matter 
from the standpoint of a favored class. 

In practice the referendum has operated mainly as a check 
on the action of the Federal Assembly, a few of the laws 
passed by it having been rejected by the people, while more 
than five to one of the enactments of the assembly have been 
allowed to take effect without any call for submission to a 
popular vote. The existence of the power in the hands of the 
people to reject an enactment must act as a wholesome check 
on the legislature, and the initiative tends to stimulate action 
demanded by the people. 

Another marked superiority of the Swiss system over that 
of other European states is the absence of a standing army, 
the greatest curse which the governments of modern Europe 
impose on their people. Switzerland follows a settled policy 



SWITZERLAND 569 

of neutrality in all the wars of other nations, and recognizes 
the principle of arbitration as of the same value and fulfilling 
the same mission of peace in the settlement of disputes be- 
tween nations that the courts perform with reference to the 
contentions of individuals and bodies of citizens within the 
state. The ambition of military leaders, inherited feelings of 
hostility between nations, and ignorance of the blessings 
which may be derived from friendly intercourse, still pro- 
duce that most lamentable spectacle of great nations profess- 
ing civilization and Christianity, groaning under the weight 
of crushing military establishments, each of which becomes 
the main reason and excuse for the maintenance of the other. 
Bern, the Swiss capital, has also become the seat of the 
most advanced governmental combination ever yet effected, 
the international Postal Union, a governmental combination, 
the sole purpose of which is to facilitate intercommunication 
between the people of all the nations of the earth. It dis- 
charges one of the highest and best functions of government, 
a useful service through the friendly cooperation of all na- 
tions in a surprisingly economical manner. Perhaps Swiss 
statesmen are not entitled to especial credit for the success of 
the Union, but the peaceful principles on which the state acts 
render it the natural home of such a Union. Switzerland, 
after enduring the evils of the lordship of one canton over 
the people of another under a claim of property rights, now 
has no subject territory. Wherever Swiss sovereignty 
reaches are Swiss citizens with equal political rights. The 
constitution shows evidences of a desire to reach better ad- 
justment of compensation for labor, to better the situation 
of those who have less than a fair share of the fruits of in- 
dustry, but it cannot be said that any principle of property 
rights in marked advance of those recognized in other coun- 
tries has been accepted. 

Authorities 
McCracken : Rise of the Swiss Republic. 
Colton: Annals of Switzerland. 
Stead and Hug: Switzerland. 
Foreign Constitution. 
Encyclopaedia Britannica. 



CHAPTER XXIII 



France 



No country presents a more instructive history in the line 
of our study than France. We here have a chance to observe 
the development and reconstruction of their institutions by 
a people substantially homogeneous, who have dwelt in the 
same state for more than two thousand years. The French- 
men of today are the lineal descendants of the Gauls, Belgians 
and Iberians of the days of Caesar, with some admixture, it is 
true, of Roman and German blood, and some commingling of 
Northmen. The record of events from the time of the Roman 
invasion is perhaps more full and complete than that of any 
other country. Nowhere else can be found wider extremes or 
greater variety of political institutions and theories of gov- 
ernment. All stages of social organization from that of the 
small semi-savage tribe to the vast empire, and from the abso- 
lute despotism to the commune, have been exhibited. Abject 
slavery has been followed by the theory at least of liberty, 
fraternity and equality. Since Rome fell, no other European 
country has exerpised so profound an influence on the insti- 
tutions of other states. 

The earliest inhabitants of whom we have any accounts 
include Iberians, presumed to have been the earliest comers, 
the Gauls and their kinsmen the Belgians. The descendants 
of the Iberians still dwell on the slopes of the Pyrenees and 
are called Basques. They were short of stature, of dark com- 
plexion, resolute and tenacious in the defense of their homes, 
but without capacity for organization on a large scale. The 
Gauls of early days, like the French people of today, were 
bright, vivacious, brave and intelligent, but they too had made 
little progress in the organization of society. They dwelt in 
villages mainly, but had some walled towns. Caesar describes 
them as divided into factions, and mentions these factions as 

57o 



FRANCE 571 

extending into every clan and village. The ruling classes were 
divided into two distinct orders, the knights and warriors, 
whose only calling was war, and who substantially every year 
carried on strife with some neighbor, and the Druid priests, 
who were not only charged with the management of religious 
rites, but also were the judges and teachers of the people. 
Beneath these ruling classes were slaves in large numbers, 
constituting the bulk of the population. The authority of the 
Druids was very great, and the Roman church appears to 
have borrowed some of its forms from them. One method of 
enforcing their judgments was by excommunication and inter- 
dict, causing everyone to fly from the condemned person as a 
being accursed, and to whom they could give no aid without 
calling down the heaviest penalties on themselves. They sac- 
rificed human beings to their gods, preferably criminals and 
enemies, but for want of these the innocent were taken, and 
religious enthusiasm induced some to voluntarily become vic- 
tims. In their exemptions from military duty and from taxes 
the Druids enjoyed privileges similar to those of the later 
clergy. In the use of torture in their trials and of burning as 
a punishment they furnished precedents for the Inquisition, 
and they ranked the crime of resisting their authority, as the 
later church did that of heresy, the most deadly of all offenses. 
Yet Caesar praises the impartiality of their justice, and gives 
them credit with protecting the weak as well as the strong. 
They built no churches, but held their rites in the groves. 
Whether polygamy was practiced is not made very clear, but 
it seems that it was. Caesar says that at marriage the husband 
added to the wife's dowry an equal sum, and that the increase 
of the whole was kept by itself and belonged to the survivor 
on the death of one of them. The husband and father had 
the power of life and death over his wife and children. Fu- 
nerals were conducted with great extravagance and ceremony, 
and with human sacrifices of slaves or dependents of rich 
nobles. The Gauls appear to have passed the stage of common 
tenure of land in Caesar's time, for he speaks of the Druids 
having power to decide questions of boundary. They were 
accustomed to the use of money, and in the useful arts were 



572 EVOLUTION OF GOVERNMENTS AND LAWS 

considerably in advance of the Germans. The Belgians were 
more like the Germans, to whom they were nearer and more 
closely related, and with whom they were almost constantly 
at war. Some progress had been made in weaving and metal 
working. Confederations were sometimes formed by differ- 
ent tribes for defense against incursions from the east, but 
they were not inclined to unite for aggressive warfare. 

The Greeks at an unknown date settled at Marseilles and 
established Massalia, which became an important trading port, 
and in 122 B.C. the Romans founded the town of Aquae Sex- 
tiae, now Aix, and spreading out over the adjacent country 
formed the province of Gallia Braceata, of which as a Roman 
municipium Narbonne was made the capital in 118 B.C. In 
the time of Caesar the Helvetians and German tribes were 
threatening to invade Gaul, and Caesar's first campaigns were 
against them, with the Gauls seeking his assistance and pro- 
tection. Having overcome these enemies, Caesar proceeded to 
reduce Gaul to the Roman authority, and by 50 B.C. had ac- 
complished the task. From Gaul as a basis he established his 
power over Rome. Roman institutions were well adapted to 
the tastes and needs of the Gauls, who soon became thorough- 
ly Romanized. The work of organization was not completed 
in Caesar's time. In 27 B.C. Augustus established three new 
provinces, in addition to the old one, out of the territory con- 
quered by Caesar, namely Aquitania in the southwest, Lugdu- 
nensis in the middle and Belgica in the north. The population 
of the country was mainly of the ancient stock, with whom 
Roman colonists freely mingled. Though there were some 
revolts after Caesar's time, they were soon suppressed. The 
Romans brought their system of agriculture, their laws and 
arts. They built cities, made roads, encouraged commerce and 
established social order. 

A long period of peace and rapid advancement in civiliza- 
tion followed. By 160 the Christian religion was introduced, 
and during the next hundred years it spread rapidly. The 
country was substantially exempt from inroads of foreign 
enemies for about three centuries. Under the empire Gaul 
played an important part. Antonius Pius was a native of 



FRANCE 573 

Gaul. In the last half of the third century Postumus estab- 
lished a Gaulic empire, which was continued by his successors 
Victorinus and Tetricus. In 236 the Alemanni, a German 
tribe unknown to the Romans, crossed the Rhine, but were 
driven back, and about the same time the Goths appeared on 
the Danube. During the next half century there were many 
incursions of Franks and Alemanni into Gaul, but no perman- 
ent conquest. By this time the imperial government had so 
ground the people of Gaul with taxation that they were thor- 
oughly impoverished, and a notable uprising of peasants and 
slaves took place in 285, which spread over the north of Gaul 
and added to the miseries of the people. The title to the land 
was held by a few, and the work of tillage was mainly per- 
formed by slaves. The Gauls under Roman rule relied on the 
imperial government for protection, and when the period of 
disorder came, they were an easy prey to their more warlike 
neighbors across the Rhine, who, free from Roman domina- 
tion, organized expeditions when conditions were favorable. 
Thus from 260 to 268 a band of Franks swept through Gaul 
into Spain and finally passed into Africa and disappeared. 
From this time forward there was more or less border warfare 
and incursions of Germanic tribes into Gaul, some of whom 
effected permanent settlements. 

Early in the fifth century commenced that movement of 
people which put an end to Roman rule in Gaul. From 406 to 
409 there was a deluge of invaders, who mercilessly killed the 
people and destroyed their property. Cities and towns, of 
which a great number had been built, were taken, pillaged and 
burned. In 412 the Visigoths and Burgundians established 
kingdoms in the south of Gaul. In 451 Attila and the Huns, 
who had become the terror of Europe, made their way into 
Gaul and took Orleans. They were met by the combined 
forces of Romans, Gauls, Goths and Germanic tribes, defeated 
at Chalons in a great battle, and expelled from the country. 

The Franks, from whom France takes its name, were main- 
ly settled in the neighborhood of the lower Rhine, and were 
divided into the Salians and Ripuarians. Though prior kings 
are named, their history is unimportant, and with Clovis king 



574 EVOLUTION OF GOVERNMENTS AND LAWS 

of the Salian Franks of Tournay commences the Frankish 
state. Clovis was a fierce, cruel, cunning and unscrupulous 
barbarian, who did not hesitate to take the lives of all who 
stood in his way, often with his own hand, but he was suc- 
cessful in extending his power over nearly all Gaul. He mar- 
ried a Christian maid, Chlotilde, who, aided doubtless by other 
influences, converted him to Christianity. His warriors also 
were baptized, but neither he nor they took in much of Chris- 
tian morality. He however became allied with the Christian 
clergy, who aided him in extending his power. The dynasty 
founded by Clovis derives its name from one of his ancestors, 
and is styled the Merovingian. With it the history of France 
as a nation begins. At his death Clovis left his kingdom di- 
vided among his four sons. He had acquired most of it by 
conquest, and he left it as an inheritance, divided according 
to the prevailing German custom among all his sons. They 
fought for the shares of each other, with the result that 
Clotaire got it all. At his death it was partitioned among 
his four sons and again united under Clotaire II. The Mero- 
vingians ruled from 511 to 752, and their history teaches little 
but the evils of despotic military rule. They were cruel, per- 
fidious, debauched and many of the later ones almost idiotic. 
The pernicious principle of treating political power as property 
to pass by inheritance caused untold misery and misfortune 
to the people. No other dynasty illustrates so constantly and 
forcibly the evil consequences of passing political power from 
father to son without regard to capacity or merit. No other 
dynasty exhibits in more disgusting form the evils of despotic 
rule. Not kings only, but queens as well, displayed their 
cruelties and vices. The stories of Fredegonde and Brune- 
child are typical of a most cruel age and the execution of the 
latter, at the advanced age of eighty by tying her to the tail 
of an unbroken horse by the hair of her head, one arm and 
one foot, of the possibilities of kingly cruelty under Clotaire 
II. Murder and rapine lay at the foundation of the kingdom, 
and morality found little lodgment in the palace or the home 
of the great landlord. Christianity was for them merely the 
name of a superstition, and these coarse and brutal rulers 



FRANCE 575 

hoped for aid in their cruel deeds from the unseen power, to 
whose priests they gave present of lands and goods. 

The government, laws and land tenure, which developed 
as a result of the conquest of the Franks, were made from 
three widely different systems. Before the advent of the 
Franks the Roman law furnished rules for all property rights, 
land tenure and inheritance, as well as for determining the 
status of citizens and slaves. The people were accustomed to 
submit to the cruel exactions of the tax gatherers, who robbed 
them of their substance without returning any considerable 
benefit in the way of public works or services. Illiteracy and 
ignorance were general, and the moral tone of society low. 
A large proportion of the people was held as slaves to the rest. 
In race the inhabitants were mainly Gauls, with an admixture 
of Romans, and with settlements of Goths and other Germanic 
tribes in places. The Franks had never been subject to Roman 
rule or law. They preserved and followed most of the ancient 
German customs, though the power of the king had been con- 
siderably increased. The controlling power of the nation still 
resided in the assembly of freemen, but the king and his an- 
trustions, the followers of his person, had become a military 
caste and largely dominated the affairs of the state. 1 

Three orders of people had been formed among them. The 
antrustions, the freemen and slaves, whose relative importance 
may be judged by the rate of composition allowed for taking 
the life of one of them. For the antrustion, six hundred sous, 
for an ordinary freeman two hundred sous and for a bondman 
forty-five sous. At and prior to the time of Clovis the antrus- 
tions had not become a landed aristocracy. They were the 
companions and personal followers of the king, who fought 
with him and received a share of the booty taken, and were 
accorded a degree of consideration above that of ordinary 
freemen. To just what degree the ancient German system of 
common tenure of land had been modified it is difficult to de- 
termine, but neither the idea of individual ownership of an 

1 For a very full and interesting account of the development of the 
laws of France see Broussaud's French Private Law, Continental Legal 
History Series, vol. 3. 



576 EVOLUTION OF GOVERNMENTS AND LAWS 

inheritance in the soil, nor of feudal tenure, had gained gen- 
eral recognition. In religion they worshipped the fierce Ger- 
man gods without the intervention of any priestly order. In 
domestic life they were monogamists, and their women were 
treated as companions. Though their customs admitted slav- 
ery, slaves were not numerous among them. On their advent 
into Gaul they found the Roman Church. It had supplanted 
the ancient Druids and already owned considerable estates. 
Among a people sunk in ignorance and prone to gross super- 
stition, the clergy, with the mystery of book and bell, had 
gained great influence, and through the confessional, absolu- 
tion, baptism, marriage and the many functions assumed as 
pertaining to religion, exercised a potent authority. Clovis 
adopted this religion, and his soldiers followed him to baptism 
as they did to battle. Though in after times contentions some- 
times arose between the princes and the clergy, the two, work- 
ing in concert, contributed greatly to each other's power. The 
princes encouraged the support of the church, and often grant- 
ed it great possessions, and in return the clergy taught the 
ignorant multitude the divine right of kings to rule and the 
sacredness of their persons. The church had its peculiar list 
of offenses against its rules and authority and its own system 
of punishing offenders. The Franks as conquerors became the 
dominant force, and in all matters pertaining to the rights of 
Franks the Salic law prevailed, but it was crude and covered 
only the needs of a comparatively simple people. The Roman 
law, having been the development of a great empire during a 
long course of time, was of far greater volume and complexity, 
but owing to the long period of oppression, the general ignor- 
ance and the inefficiency of the judicial system, there was not 
much knowledge of its principles among the people. The 
existence of its learning and refinements in scattered volumes, 
which few even of the ruling class could read, afforded almost 
no protection to any one in his rights. The canons of the 
church were of more living force, for they were studied and 
followed by the clergy in all matters of ecclesiastical cogni- 
zance. The earliest code of Salic law extant is of uncertain 
date, but must have been written subsequent to the early con- 



FRANCE 577 

quests of Clovis. The legislative power was still in the as- 
sembly of freemen, and the judicial power in a judicial 
assembly of 'freemen. Punishments were almost exclusively 
by fines, and the law determined the distribution of weregeld 
among the kindred of a murdered man. It is said that the 
Germans knew only two capital crimes. They hanged traitors 
and drowned cowards. All other offenses could be commuted 
in money. In their first inroads the Franks came as red-hand- 
ed spoilers. The plunder taken was divided among the con- 
querors. At first they did not covet land so much as cattle 
and goods, which they took wherever they could find them. 
In the development of the system of land tenure it was not at 
first the custom to grant great fiefs in perpetuity, or even for 
life. In that system which afterward became so general, by 
which the power and dignity of the nobles were measured by 
the tenure and value of their lands, the first step hardly con- 
tained a hint of what followed. At first the counts were sent 
to rule over their districts for a year only. The distribution 
of the counties was a matter debated in the general assembly, 
but later it was solely for the king. The authority of the 
counts was renewed from time to time, until an assignment to 
a county was generally equivalent to a term for life. 

Clovis and his sons raised and led their own armies, ap- 
pointed the counts who ruled in the counties and the chiefs of 
hundreds, but in the course of a few generations the inca- 
pacity of the kings made it necessary to choose more vigorous 
leaders. In a society constituted like that of the Franks at 
that time the chief man in the household of the king, where 
all the principal men congregated, naturally exercised the 
authority which the king was too weak or too indolent to 
exert. The mayors of the palace were sometimes named by 
the kings to aid them in their struggles with the lendes, the 
antrustions, and sometimes elected by the lendes in opposition 
to the king. While the kingdom was divided, in Neustria the 
mayors supported the interests of the kings, while in Austrasia 
they sided with the lendes. The mayors assigned the lords to 
their fiefs, raised the armies and led them to battle. Under 
Dagobert I and his son, Sigebert II of Austrasia, Pepin of 



578 



EVOLUTION OF GOVERNMENTS AND LAWS 



Landen, who had acquired vast possessions and great military 
prestige, became mayor of the palace. His son and then his 
grandson Pepin succeeded to his authority. The latter for 
twenty-seven years and during the time of four kings exer- 
cised the chief power in the state. He sought to pass his 
power at his death to an infant grandson by his first wife, but 
the nobles would not have it so and chose his son Charles in- 
stead. Charles became the real ruler, and the kings were 
mere puppets in his hands. The invasion of the Mohamme- 
dans and their crushing defeat by the Christians under the 
command of Charles at Poiters in 732 gave him the name of 
Martel and greatly strengthened his position. Charles found 
it necessary in order to carry on his wars to make the church 
contribute, and did not hesitate to lay hold of church lands 
and confer them on his 'followers. Still he was a zealous 
churchman, and labored not only to drive back the Moslems, 
but also to propagate Christianity in Germany. At his death 
he transmitted a divided authority to his two sons, but one 
of them soon withdrew to a monastery, leaving Pepin sole 
mayor and ruler in fact. 

In 752, with the advice and consent of the Pope, the gen- 
eral assembly of lords and bishops proclaimed Pepin king and 
put an end to the puppet kings. During the times of the 
mayors of the palace much progress had been made in the 
development of the feudal system. Land had become the 
source of wealth and power. The possessions of the church 
had been extended at times and taken away at others. The 
many partitions of the kingdom and the constant struggles 
between the descendants of Clovis, and later the mayors of 
the palace, for the whole kingdom, with the frequent murders 
and confiscations, brought new lands to the king, which he 
found it necessary to confer on his retainers in consideration 
of their support. Each vassal receiving a benefice became 
bound to furnish aid to the sovereign, corresponding with 
the size of his estate. In this manner much land had become 
the subject of tenure as benefices from the king or mayor, 
though most of it was then held only for life. 

The succeeding reign of Charlemagne stands out in bold 



FRANCE 579 

relief in a barbarous age. The extension of his empire and 
the system of government he established have already been 
considered in the chapter on Mediaeval Europe and will not 
be here repeated. The feudal system as developed in France 
has also been treated in the same connection. The house 
established by Pepin reached its acme of intellectual vigor as 
well as of power in Charlemagne. With all his prudence in 
affairs of state, he adhered to the ancient Frankish custom of 
dividing his empire as an inheritance among his sons, and this 
custom continued under the Carlovingians as in the first dyn- 
asty. The nobility, from being personal followers of the king, 
entrusted by him with the administration of local affairs for 
such limited period as he, with the assent of the popular as- 
sembly might fix, had grown in power and asserted a title to 
great estates; and from the time of Charlemagne the bene- 
fices began to be treated as inheritances which the king had no 
power to take away. With a firm hold on the land the feeling 
of dependence on the king abated, and the system, which was 
originally designed to create a strong bond of union between 
king and vassal, by a very natural evolution rendered the king 
dependent on his great vassals and reduced his authority to a 
shadow. The genius and energy of Charlemagne led him to 
take the utmost pains to gather information with reference to 
the condition of affairs in every part of his empire. He held 
frequent assemblies of the freemen, where laws and regu- 
lations were discussed. From these the double advantage 
accrued of gathering information from the people drawn 
together from different parts of the states for his own en- 
lightenment, and the dissemination of knowledge and instruc- 
tion in laws and principles of government among the leading- 
citizens. He also employed messengers, constantly traveling 
over the country, to learn and report how the local affairs 
were being administered and what the needs of the people 
were. Nothing indicates more strongly his wonderful energy 
and capacity than his success in gaining and distributing in- 
formation. Herein lies one of the greatest inherent weak- 
nesses of a government by a single ruler. He cannot and does 
not know much about the conditions and the needs of his sub- 



580 EVOLUTION OF GOVERNMENTS AND LAWS 

jeets. In the nature of things a single person can be in but 
one place and investigate but one subject at a time. In a great 
kingdom there are thousands of places and subjects requiring 
careful, patient, intelligent consideration, and often vigorous 
action. To the indolent king in his palace with his dissolute, 
courtiers the needs of the times are almost unknown, and 
often the capacity to act efficiently is wanting. The task is 
altogether too great even for the greatest of men. This truth 
was well illustrated in the succeeding reign of Louis the Pious, 
who is characterized as moral, cultured and actuated by the 
highest motives and purposes, yet in his tastes he was modest 
and retiring, preferring solitary study to mingling with the 
throng. The government of such an empire imperatively de- 
manded the utmost vigor in gathering knowledge of what 
was going on and the most prompt and resolute action. It 
was not an age when moral worth in a king brought volun- 
tary compliance with his wishes. The soldiers, who had 
followed his father, Charlemagne, in his victories, were fierce 
barbarians. Charles himself could be bloody and cruel when 
he deemed it useful, as in the case of the revolted Saxons, 
when he caused the heads of four thousand five hundred of 
their chief men, whom he had summoned to meet him, to be 
all cut off in one day. Gentleness and humility were virtues 
not then appreciated in a ruler. Courage, strength and an 
iron will were requisite to the control of a turbulent and im- 
moral nobility. The reign of the pious, kind Louis was of 
weakness, disorder and civil war. In the laws which he pro- 
mulgated the wonderful diversity of genius and marvelous in- 
tellectual energy of Charlemagne is displayed. His Capitu- 
laries included articles inculcating moral precepts, regulating 
matters political and of administration, prescribing penalties, 
regulating civil rights, relating to religious matters, canonical 
observances and incidental matters. The Capitularies were 
lacking in system and logical arrangement, and many of them 
were mere expressions of sentiment on some moral or religious 
subject, but taken all together they exhibit the activities of a 
remarkable mind, capable at the same time of formulating 
rules and carrying them into practical operation. Unlike some 



FRANCE 581 

of his successors, Charles was not afraid of learning, but had 
a school in the palace conducted by the best teachers he could 
obtain, and he encouraged the dissemination of such learning 
as was then taught. There was too much ignorance and bar- 
barism for him to fear the effects of learning among the 
people. It was a most laudable command he gave to the bishops 
and abbots, that in the cloistral schools "they should take care 
to make no difference between the sons of serfs and of free- 
men, so that they might come and sit on the same benches to 
study grammar, music and arithmetic." Charles ruled forty- 
six years from 768 to 814 with Aix la Chapelle as his capital 
and an empire covering parts of Italy and Germany and all of 
France. The empire he established fell apart under his suc- 
cessors, and the Carlovingian dynasty came to an end in 987, 
prior to which time thirteen kings of that race sat on the 
throne of France. During this period there were many incur- 
sions of the Northmen, who ravaged the coasts, ascended the 
rivers, took and pillaged many of the chief towns. These be- 
came more frequent and in larger numbers until the reign of 
Charles the Simple, when the Northmen under the lead of Rolf 
settled at Rouen. In 912 Rolf was given as a fief the lands 
he and his followers had conquered and became a vassal of the 
king. The Normans settled down to agriculture, and no 'fur- 
ther incursions ensued. 

The Magyars made inroads from 910 to 954 in the eastern 
provinces but effected no permanent settlement. The feudal 
system continued to grow, and the inheritance by the sons of 
the great vassals of their fiefs became an established rule. The 
German, Italian and French portions of the empire fell apart 
in 843. The provinces were treated as property, to be bestow- 
ed and distributed according to the king's pleasure, and France 
was divided to meet the varying conditions. The progress 
made in the development of the inheritance of fiefs is indicated 
by a capitulary of Charles the Bald in 877. 

"If after our death any of our lieges moved by love for God 
and our person desires to renounce the world, and if he have 
a son or other relative capable of serving the public weal, let 
him be free to transmit him his benefices and his honor accord- 



582 EVOLUTION OF GOVERNMENTS AND LAWS 

ing to his pleasure. If a count of this kingdom happen to 
die and his son be about your person we will that our son, to- 
gether with those of our lieges who may chance to be the 
nearest relatives of the deceased count, as well as with the 
other officers of the said countship, and the bishops of the 
diocese wherein it is situated, shall provide for its administra- 
tion until the death of the heretofore count shall have been 
announced to us and we have been enabled to confer on the 
son present at our court the honors wherewith his father was 
invested." Thus, while the king nominally retained the right 
to confer the fief at the death of the tenant, he recognized the 
right of the heir to take it. During this period the power of 
local administration and the ownership of land had become 
consolidated. The counts, who under Charlemagne were 
merely his local officers, had all become great landowners and 
ruled their estates because they owned them. Political power 
passed by inheritance with the land. Under the Carlovingians 
the feudal system continued its development, and by the end 
of that dynasty the great lords and the heads of the church 
represented the political power of the state. Subinfeudation 
had become a part of the system, and the great lords had their 
vassals holding considerable estates with other vassals below 
them. The advantages of connection with the ruler of the 
district led those holding allodial lands to give them to the 
lord and receive them back as fiefs. By so doing the tenant 
became a person of greater consideration, entitled to a larger 
composition in case of injury, exempted from the confiscation 
of his property for failure to appear in court or obey the 
judge's orders, and from trial by ordeal of boiling water for 
petty crimes. The immediate vassal of the king could not be 
compelled to testify in court against another vassal, nor to 
swear in person at all, but only by the mouths of his own 
vassals. Thus there was great advantage in holding directly 
from the king. This process of converting the allodium, or 
independent tenure of lands, into fiefs became most active 
under the weak kings, when the local lords became the real 
rulers, unrestrained by any central authority. It continued 
under the third dynasty. As to much of the land, the church- 



FRANCE 583 

men held the places of feudal lords, and archbishops, bishops 
and abbots were temporal rulers, who took a leading part in 
national affairs. 

On the death of Louis the Sluggard, the last of the Carlov- 
ingians, in 987, the lords spiritual and temporal met at Sanlis, 
and Adalberon, archbishop of Reims, induced those present to 
put off the choice of a king till a more general meeting could 
be held, and to swear to the duke of Paris "between his hands" 
that in the meantime they would do nothing in the way of the 
election of a king. About the last of June they reassembled 
and, putting aside as unworthy Charles of Lorraine, a lineal 
descendant of Charlemagne and uncle of the late King Louis, 
on motion of the archbishop they chose Hugh Capet, count of 
Paris, a descendant of that Count Eudes who had stoutly de- 
fended Paris against the siege of the Northmen, as king. He 
was thereupon proclaimed and crowned king by the metropoli- 
tan. He was thus made king by the church and the feudal 
lords, and the dynasty so established was a feudal one under 
church influence. In return for kingly aid the church taught 
the divine right of the king to rule and the doctrine of sub- 
mission and obedience to his authority, no matter how unjustly 
or oppressively exercised. 

In the election of Capet .the French clergy exhibited excep- 
tional independence, for Pope John XVI sustained the claims 
of Charles. The reign of Hugh Capet lasted only from 987 
to. 996. On his death his son Robert succeeded him, and he 
and his son Henry and grandson Philip ruled till 1108. Capet 
and his successors were great landowners and ruled as counts 
of Paris over their estates and province. The kingly office 
gave added prominence rather than a great increase of power. 
The king had feudal superiority and precedence over his great 
vassals, whom he had a right to call on to aid him in his wars, 
but he could not pass the vassals by and command the follow- 
ers under them. Within his own district the feudal lord 
brooked no dictation as to the conduct of local affairs, even 
from the king. The king's court, however, was the fountain 
of honor and distinction, and kingly power, though not vig- 
orously exercised during this period, was more than a shadow. 



584 EVOLUTION OF GOVERNMENTS AND LAWS 

This was a time of freedom from foreign wars. The vassals 
fought their private wars and the king sometimes took part 
in them. In the time of Capet there was some resistance to 
his authority by followers of the Carlovingians, but they were 
subdued. 

That the common people felt the grinding oppression of the 
system is evidenced by revolts of the peasants, one of which 
occurred in Normandy and was suppressed with great barbar- 
ity. The church, too, began to exhibit cruel jealousy of any 
questioning of its authority, and the burning of heretics be- 
came one of its functions. The relations of king and vassals 
are well illustrated by the aid afforded by King Henry I to 
young William of Normandy, against his revolted vassals, aid- 
ed by Guy of Burgundy, and later by the war between King 
Henry and William in which the king was defeated by Wil- 
liam in two battles. The king died soon after and William 
appeared at the coronation of his son Philip, for whom he 
fought against his revolted subjects. It may almost be said 
that private war was so general and inseparable an incident of 
the times that it did not imply real enmity between the 
combatants. 

This was the age when knighthood flourished. It was es- 
sentially a military order of mounted and armored warriors. 
The code of duty and honor, to which a knight was sworn, 
exhibits a strange blending of pure Christian virtues and as- 
pirations, with wars' savagery. Many different orders of 
knighthood were formed during the crusades. In the earliest 
stages knighthood was connected with the feudal system of 
land tenure and implied the possession of a fief of sufficient 
value to maintain the knight, supply him a horse and armor 
and means to defray his expenses during the customary period 
of knightly service in the wars of his over lord. There were 
various methods of conferring knighthood. That deemed 
most honorable was for valiant service, and conferred by the 
over lord on the field of battle. The members of the knightly 
orders of fighting priests, which were organized during the 
crusades, were not necessarily holders of fiefs, or of any lands. 
In course of time knighthood came to be conferred only on 



FRANCE 585 

descendants of the nobility. The ceremony of investiture might 
be purely military or a combination of both religious and mili- 
tary rites. When conferred in times of peace with full re- 
ligious ceremonies, the candidate for knighthood was required 
to first purify himself in a bath and clothe himself in a white 
tunic, symbolical of purity, a red robe, symbolical of the blood 
he would shed for the faith, and a black coat, emblematic of 
the death awaiting all men. He must fast for twenty-four 
hours, then enter the church and spend a night in prayer. 
After confession he received the communion, and often listen- 
ed to a sermon on the duties of knighthood. He then ad- 
vanced to the altar with the knight's sword hanging from his 
neck. This the priest took off, blessed and replaced on his 
neck. He then knelt before his superior lord and having been 
duly questioned and made the required responses, received his 
spurs, coat of mail, cuirass and sword and was dubbed knight 
by receiving three blows from the lord with the flat of the 
sword on his shoulder or neck. The knightly oath bound him 
above all to be a bold and constant fighter, a fierce barbarian in 
the service of his king, his overlord and the church, but to up- 
hold the rights of widows, orphans and damsels, to injure no 
one maliciously nor fight for gain, but only for glory and 
virtue, to guard the honor and rank of his comrades and do no 
trespass against them, to be truthful and keep faith inviolably 
with all the world and aid one another, to shun no danger, nor 
take pay from any foreign prince, to live in order and disci- 
pline when in command of troops, to faithfully defend females 
in his charge and do them no evil, that being challenged to 
equal combat he would not refuse to fight, that in the pursuit 
of honor he would dare and do his utmost, "that above all 
things he would be faithful, courteous and humble, and would 
never be wanting to his word for any harm or loss that might 
accrue to him." Had the knights generally strictly adhered to 
these precepts, many of which breathe the purest and loftiest 
sentiments, the world would have progressed rapidly from its 
degraded state, but unfortunately the part most faithfully fol- 
lowed was that which enjoined fighting and bloodshed. The 
Christian virtues of truthfulness and protection to the weak 



586 EVOLUTION OF GOVERNMENTS AND LAWS 

were far too often neglected. Still this kinghtly code exer- 
cised a profound influence on society. The times were a 
strange mixture. In church and monastery might be found 
zealots struggling to attain an ideal purity and holiness by 
the sacrifice of all wordly comfort and enjoyment. Fasts, 
• vigils, scourgings and all manner of mortifications of the 
flesh were self-inflicted and patiently endured to attain spirit- 
ual purification. On the other hand some churches and mon- 
asteries were the homes of ambitious men, who cunningly 
sought wealth and power or lived as idle debauchees, secretly 
scoffing at virtue, religion and morality. It was the age o'f 
discord and of superstition. The estate of each petty noble 
was essentially a separate sovereignty, from which the com- 
mon herd were never allowed to wander. There was no inter- 
course between those dwelling at a distance from each other, 
unless they were of knightly rank. At the king's court and 
at the tournaments the knights gathered for their fierce sports. 
Education was wholly neglected among the common herd and 
hardly less among the nobles; even among the monks many 
were illiterate, and the learning of the clergy was sadly de- 
ficient. Yet in some quiet cells there were earnest students 
and patient scholars who sought light and truth with great 
diligence. This was the age which brought forth William of 
Normandy, the conqueror of England, a bastard son of Count 
Robert, descended from Rolf the Northman, who had won 
his foothold there about a century and a half before the inva- 
sion of England. William's mother was the daughter of a 
tanner, and it is probable that he owed much of his vigor and 
ability to her. By reason of the seafaring habits of the Nor- 
mans and their proximity to England, there was much inter- 
course across the channel. On Sept. 2.7, 1066, William sailed 
with his fleet to effect the conquest of England. How large 
a force he took or in how many or how large ships he sailed 
we have no definite record, but he won the battle of Hastings 
and gained the English throne. Thus a vassal oif the French 
king became ruler of England. The claims of the Norman to 
rights in France as a feudal lord became a prolific source of 
contention and wars between the two countries, from which 
little but evil resulted to the people of both. 



FRANCE 587 

Stirred by the preaching of Peter the Hermit the First Cru- 
sade started in 1096 to free the Holy Land and clear the way 
for the pilgrims. Since the age of Charlemagne there had 
been no foreign wars to take the people of France into far dis- 
tant lands. There was but little commerce, and the inter- 
course between distant people was exceedingly limited. The 
pilgrimages of the devout to Jerusalem afforded almost the 
only occasion for gaining knowledge of foreign countries, and 
these of necessity were not in great number. The people of 
France, always noted for their daring and generous impulses, 
were profoundly moved by the accounts of the sufferings of 
the pilgrims and the profanation of the Holy City by the in- 
fidels. France furnished a large portion of the army for the 
first crusade and its most noted and efficient leaders, Godfrey 
of Bouillon, Raymond of Toulouse, Tancred de Hauteville 
and other less noted men led the organized force, and followed 
the great multitude which started as a mob and ended in dis- 
aster. The impulse which moved the crusades was not moral 
but religious. Nothing in history better illustrates the dif- 
ference between morals and religion. The people were pro- 
foundly stirred by the preaching of Peter and his details of 
the desecration of the Holy City and of the wrongs and in- 
dignities suffered by the many pilgrims, who sought miracu- 
lous aid from a spot supposed to be possessed of peculiar vir- 
tures because of its association with Jesus, the apostles and 
saints. The purpose of the crusaders was war against the 
infidels, for whose blood they thirsted. In passing through the 
intermediate country to Constantinople, being unprovided with 
supplies or money, they foraged as if in an enemy's country, 
and were guilty of all manner of brutality and excesses, so 
that they were quite as much the dread of the European Chris- 
tians as of the Moslems of Syria. After many delays, much 
discord and sometimes bloodshed among them, the crusaders 
on the 15th of July, 1099, took Jerusalem by assault and 
slaughtered great numbers of the Mohammedans. The lead- 
ing purpose had been accomplished, and Godfrey de Bouillon, 
refusing the title of king, became Defender and Baron of the 
Holy Sepulchre. Though the political and religious conse- 



588 EVOLUTION OF GOVERNMENTS AND LAWS 

quences of the crusades were of minor importance, the edu- 
cational influences were very great. Not only from all parts 
of France, but from Spain, England, Italy, Germany and in 
fact the whole Christian world, the boldest and most enter- 
prising knights were gathered to fight for the faith they pro- 
fessed. They journeyed through strange lands and came in 
contact with strange people. The Greeks of the eastern em- 
pire were scarcely better known to them than the Turks, 
Arabs and Egyptians, whom they came to fight. The rude 
Christians saw the cities and gardens of the East. People 
were moved to view a wider horizon and to long for knowl- 
edge of distant lands and alien people. This is the greatest 
good that ever results from distant wars. In spite of the 
cruelty and bloodshed, the combatants learn to know and to 
respect each other. Instead of the settled hatred of distant 
enemies, some measure of respect and even of friendship re- 
sults. Commerce ifounded on mutual benefit develops, and 
stimulated by trade the industries of each land take on new 
activities, and the peaceful intercourse of merchants slowly 
but surely lays the foundation for lasting peace and mutual 
good will. The scattered people of Europe, who from the fall 
of the Roman power had dwelt in comparative isolation for 
six centuries, were now made acquainted with each other. 
Returning crusaders could tell from personal knowledge of 
many strange people and distant lands. The impulse thus 
given to thought and the desire for knowledge which it stimu- 
lated were of the greatest importance and by far the most 
valuable of all the results of the crusades. No country was 
represented by more or better men in the Christian ranks 
than France, and none profited more from the educational in- 
fluence. The Christian rule in Jerusalem ended in 1187 and 
was never productive of important political results. None of 
the crowned heads took part in the First Crusade, but the sec- 
ond in 1 147 brought out King Louis of France and the Ger- 
man Emperor Conrad. Defeat and disaster met them. When 
Saladin took Jerusalem in 1187, it must be said to his credit 
that the barbarities exhibited by the Christians on their entry 
were not repeated by the Mohammedans, and he even paid the 



FRANCE 589 

ransom of many of the captives, after allowing the soldiers to 
march away. 

Subsequent crusades were barren of substantial results, be- 
yond the misery they caused and their continued educational 
influence. Louis IX engaged in a disastrous expedition in 
1248, spending the six following years in Egypt and Syria, 
only to suffer defeat and fall a prisoner in the hands of the 
enemy. After paying a heavy ransom and returning to France 
he lost his life in an attack on Tunis. Louis is extolled as a 
model prince and a real lover of truth and justice. During 
the years of peace he did much to advance the welfare of his 
subjects. One of the greatest evils of the feudal system was 
the exercise of judicial power by the baron without right of 
appeal, no matter how great the disregard of the law. Louis 
appointed itinerant judges and established courts superior to 
those of the feudal lords, gave a right of appeal in the last 
resort to himself and made a great law court of his parlia- 
ment. He restricted feudal wartfare among the barons, and 
issued a code of laws known as the "establishments of Saint 
Louis/' Though a despotic sovereign, he sought to rule by 
fixed principles, which are generally conducive to order. In 
his decisions he was governed by what he regarded as the law, 
rather than by caprice or personal considerations. 

The extreme of vice and cruelty which excessive religious 
zeal may attain was exhibited in the crusade against the Albi- 
gensians. Their crime was that by reason of the admixture of 
descendants of Greeks, Romans, Jews and Gauls with Goths, 
Arabs and traders from the Mediterranean ports, the people 
had more of culture and refinement and more breadth of 
knowledge and liberality of sentiment than the more ignorant 
people of the north. This necessarily tended to a perception of 
the narrowness and bigotry of the clergy and to a questioning 
of the authority olf the priesthood. That suppositious crime, 
heresy, developed under such conditions. The result was 
that a crusade was preached with the sanction of the pope 
against the Albigensians, and a vast army was gathered, not 
only from other parts of France, but also from Germany, and 
for fifteen years from 1208 to 1223 one of the most cruel 



590 EVOLUTION OF GOVERNMENTS AND LAWS 

wars and persecutions of history was waged by the orthodox 
Christians against other more humane and enlightened Chris- 
tians. Though the pretext for this cruelty was religion and 
the good of human souls, the power of the church was at 
stake. The great religious corporation, of which the pope was 
the head, was quite as jealous of its temporal ascendency, of 
its revenues and its supervision over temporal rulers, as of 
mere matters of belief. Bishoprics had in many places come 
to be treated as inheritances, to be disposed of by will or other- 
wise in accordance with the wish of the incumbent. The 
period of feudal discord following the breaking up of the 
empire of Charlemagne had been auspicious for the extension 
of the power of the church, the crusades had inspired a feeling 
of unity among the Christians, and made the Pope, as the head 
of the church, by far the most conspicuous figure in Europe. 

During the twelfth century France was split into many states 
with ever changing combinations, due to wars, marriages and 
alliances. The establishment of the Norman dynasty in Eng- 
land induced a succession of wars in support of the claims of 
English kings to French dominions. The growth of towns 
and the incipient stages of the development of burghers' rights 
had already begun in the reign of Philip Augustus, 1180 to 
1223. He continued the privileges of forty-one communes, 
which had been granted charters before his time, and estab- 
lished forty-three new ones. The extremely rudimentary char- 
acter of the government of Paris in the time of St. Louis is 
shown by the fact that the same person was prefect, mayor 
and receiver general under the name of provost, and that the 
office was a purchasable one. Louis put an end to the sale of 
the office and separated it from the receivership of the royal 
domains. He also provided registers for the rules of the 
various organizations of artisans, the masters of which ap- 
peared before the provost to declare and have recorded their 
regulations. Paris, though the French king's capital, was not 
to be compared in importance as a manufacturing center to 
the Flemish towns, which by the thirteenth century had taken 
the lead in the manufacture of woolen stuffs, and were or- 
ganized on republican principles, leagued together, with agen- 
cies established in London and elsewhere. Their trade by the 



FRANCE 591 

year 1300 had become very extensive, and Flanders was the 
richest and most populous country in Europe. In that year 
Philip IV added it to France, but in 1302 met a crushing de- 
feat at the hands of the revolted burghers. 

It was in the reign of Philip IV, Le Bel, that Pope Boniface 
boldly claimed that the spiritual power included the temporal, 
and hence that the king was under his guidance. This Philip 
denied, and a fierce controversy ensued which continued till 
the death of Boniface. Clement V was elected through the 
active efforts of Philip after the brief term of Benedict XI, 
and rewarded the French king for his aid. He established his 
residence at Avignon, where the Holy See was maintained for 
the next thirty years, largely under the domination of the 
French kings. Philip also attacked the order oif Knights 
Templar, caused the persecution and burning of their grand 
master and many leading men of the order, and confiscated 
their treasures. Under his reign the kingly power was much 
increased at the expense of the pope, the orders and the feudal 
lords. In 13 15 Louis the Quarreler issued the following edict : 
"Whereas, according to natural right, every one should be 
born free, and whereas, by certain customs which from long 
age have been introduced into and preserved to this day in our 
kingdom, many persons amongst our common people have 
fallen into bonds of slavery, which much displeaseth us, we 
considering that our kingdom is called and named the kingdom 
of the Free {Franks), and willing that the matter should 
accord in verity with the name, . . . have by our grand coun- 
cil decreed and do decree that generally throughout our whole 
kingdom, such serfdom be reduced to freedom on fair and 
suitable conditions, . . . and we will likewise that all other 
lords who have bodymen (or serfs) do take example by us to 
bring them to freedom." 

It will be noted that this applied only to the serfs of the 
crown and did not have the effect of liberating those held 
by other feudal lords. On his death he left only daughters. A 
posthumous son lived only five days. His brother Philip the 
Long then convened a parliament, at which it was settled and 
ever after remained the law, that "the laws and customs in- 
violably observed among the Franks excluded daughters from 



592 EVOLUTION OF GOVERNMENTS AND LAWS 

the crown." This rule excluded the claims of Edward III of 
England, which were derived from his mother. 

The development of the towns of France and the influence 
exerted by them on the governmental affairs differs in some 
respects from that of other countries. No town at any time 
prior to the revolution of 1789 occupied a commanding posi- 
tion as a municipality. During the worst period of feudal 
anarchy the knights and their retainers were, to a great ex- 
tent, robbers and non-producers. Such industries as their im- 
mediate ifollowers pursued were mainly connected with the 
land. Throughout France, and especially in the southern 
provinces, considerable towns survived the inundations of the 
barbarians and preserved some of the ancient Roman forms 
of municipal government. When the bond which tied Charle- 
magne's great empire together became so weak that the king 
looked only to his feudal vassals for the government of their 
territories in accordance with feudal customs, it appeared that 
these were not adapted to the needs of manufacturers and 
traders. On the contrary the feudal baron, who did not work 
and who made war his business, became a robber of the more 
industrious townspeople. His extortions were either by peace- 
able exactions in some form of taxation or by forcible taking 
of property by himself or his retainers. In a large number of 
the principal towns the governing power was in the hands of 
bishops or other church officials, who ruled often in a manner 
similar to that of the lay nobility. The wrongs suffered by the 
town folks at the hands of their local rulers led to concert of 
action on the part of the burghers for self -protection and to 
conflicts with the local barons. The outcome of these con- 
flicts was some sort of an agreement as to the terms on which 
the burghers might live, and many of these agreements took 
the form of charters granted by the lord or bishop, and some 
of them were submitted to and approved by the king. They 
related solely to local affairs, and no general combination of 
the scattered towns for their common protection was effected, 
which could at any time be called national. Some of the 
southern towns united for mutual protection, and the Flemish 
towns formed real republican leagues, but the towns in the 
interior struggled on separately. Such rights of local govern- 



FRANCE 593 

ment as they gained were assured only by their written char- 
ters, and observed or not at the pleasure or according to the 
moral character of the lord. For violation of their rights the 
only appeal against their oppressors was to the king. Such' 
appeals were often made, but the relief obtained depended on 
the character of the king. The townsmen looked mainly to 
peaceful industry for their livelihood, while the knights de- 
spised all useful employments and made war and destruction 
their chief business. A natural law of the utmost importance, 
but often overlooked, gave increase of numbers and of wealth 
to the peaceful and industrious burghers. They were often 
plundered and many of them killed by the warlike barons and 
their retainers. They were themselves often contentious, tur- 
bulent and bloody, yet their general purpose was to labor and 
produce useful things. Theirs was a purpose superior morally 
and economically to that of the feudal aristocracy, and it 
brought to them the reward of increased numbers and im- 
portance. In process of time the kings found that the burgh- 
ers could supply them with money and even with fighting men, 
and the strife and jealousy between the feudal lords and the 
burghers made it possible for the king by uniting with the 
burghers to maintain his authority and increase his power over 
both. At first the charters of the communes gave them power 
only to regulate their local affairs by their own officers separ- 
ately and in their own way, but under St. Louis and Philip 
le Bel general regulations applicable to all the communes were 
prescribed. Following this came a recognition of the right of 
the towns through their representatives to be consulted in 
matters affecting the general welfare of the kingdom, and in 
1 302-1 308 and 1 3 14 Philip le Bel convoked the States-General 
and summoned thereto "the deputies oif the good towns." In 
1338 the states obtained from Philip of Valois assent to the 
declaration, that "there should be no power to impose or levy 
talliage in France, if urgent necessity did not require it, and 
then only by grant of the people of the estates." 

Thenceforth there was a connection between the towns and 
the central authority by representation in the States-General, 
when convened, and by the direct exercise of the king's author- 
ity in the government of the towns, but there was no clear 



594 EVOLUTION OF GOVERNMENTS AND LAWS 

recognition of the rights of the burghers nor definite check on 
the tyranny of either king or feudal lord. By the close of the 
thirteenth century the feudal system had, as its natural pro- 
ducts, sprinkled the country over with lords' castles with heavy 
walls and moats to resist attacks, and walled towns. , Feudal 
wars and the lack of any general authority capable of afford- 
ing protection to the weak made it necessary for the burghers 
to defend their towns and the knights their castles. In 1329 
Edward HI of England, being thereto summoned, paid hom- 
age to Philip of Valois, as king of France, for the duchy of 
Aquitaine, but in 1337 Edward himself laid claim, though 
without any very plausible ground, to the crown of France, 
and commenced what is sometimes called the hundred years' 
war. It was cruel and destructive and unproductive of benefit 
to either combatant. Edward courted the aid of the Flemish 
towns and alliances with disaffected nobles, from some of 
whom he claimed and received homage as king of France. 
Opposing claims of different vassals to the duchy of Brittany 
led to the king of France supporting one and the king of Eng- 
land another, and, though a truce had been agreed on between 
the two kings, they fought in Brittany for their vassals, 
though still claiming to observe the truce. This was spoken 
of as the war of the three Joans, owing to the leading parts 
taken by wives of the claimants to the dukedom, and exhibited 
the mixture of fierceness and barbarity with occasional bursts 
of generosity and virtue so characteristic of feudal society. 
From 1347 to 1349 the "black death" took off a great part of 
the population. In the early period of the hundred years' war 
the English gained advantages. At Crecy the French were 
defeated and again at Poitiers, where on Sept. 19, 1356, John II 
of France and his young son Philip were taken prisoners by 
the English under the prince of Wales. They were treated as 
distinguished guests, though the arbitrary execution of prison- 
ers or obnoxious subjects was a frequent occurrence under 
both sovereigns. Before this unfortunate battle, in 1355, John 
had found it necessary to convoke the States-General, from 
which he received liberal grants of supplies and the levy of 
new forms of taxes that occasioned great discontent. After 
the battle of Poitiers lohn's eldest son Charles assumed the 



FRANCE 595 

direction of affairs under the title of lieutenant of the king and 
summoned the States-General to meet at Paris on Oct. 15. 
The clergy appeared in full force and about one hundred dep 1- 
ties from the towns, but so many of the nobility had fallen in 
the battle that the representation of that order was very light. 
Each order at first held separate sessions, but they soon chose 
commissioners from each to sit together. These numbered 
eighty in all Charles, who is styled the Dauphin, appointed 
some of his officers to be present at their meetings, but they 
refused to proceed in their presence and the officers thereupon 
withdrew. After a few days they made their demands on 
Charles ''that he should deprive of their offices such of the 
king's councillors as they should point out, have them arrested, 
and confiscate all their property." Twenty-two men, including 
the chancellor, president of parliament, king's steward and 
some officers of his household, were named. They also de- 
manded that deputies called reformers should traverse the 
provinces as a check on the royal officials, and that twenty- 
eight delegates chosen from the three orders, ifour prelates, 
twelve knights and twelve burgesses should be constantly 
placed near the king's person "with power to do and order 
everything in the kingdom just like the king himself, as well 
for the purpose of appointing and removing public officers as 
for other matters." The Dauphin asked time to consider and 
left Paris for Metz. During his absence the populace of Paris 
under the lead of Stephen Marcial became exasperated at an 
order for the debasement of the coin and compelled its sus- 
pension till the Dauphin's return, when they again rose and 
forced him to accede to the principal demands made by the 
States-General, and they were authorized to meet when they 
pleased. At a subsequent session of the States-General in 
March, 1357, a grand ordinance in sixty-one articles, enumer- 
ating the grievances complained of and prescribing redress for 
them, was drawn up, and a grand commission of thirty-six 
was appointed to meet together at Paris for ordering the af- 
fairs of the kingdom, whose orders all classes must obey. A 
period of turbulence followed, during which the populace of 
Paris took a leading part in public affairs. In February, 1358, 
under the lead of Marcial they entered the palace and killed the 



596 EVOLUTION OF GOVERNMENTS AND LAWS 

marshals of Champagne and Normandy in the presence of the 
Dauphin. Marcial soon became dictator at Paris, and the 
Dauphin escaped to Senlis. He soon after convoked the 
States-General to meet at Compiegne. In response to his call 
the nobles and partisans of the murdered marshals turned out 
and demanded the execution of the murderers. While matters 
stood in this attitude there was an uprising of the peasants in 
Normandy and other provinces. They took and demolished 
many castles and killed many noblemen and their families. 
Marcial sent out a body of three hundred burghers to aid in 
taking the castle of Ermenonville, which was demolished and 
all the nobility in it put to death. The nobility under the lead 
of the Dauphin soon made common cause against the peasants, 
who were overcome and great numbers of them massacred. 
Marcial, as a last desperate expedient to save himself, called 
in the aid of the English and admitted a body of them into the 
city, but a quarrel broke out between them and the Parisians, 
in which a number of the English were killed. On July 31, 
1358, while attempting to open the gates of the city to admit 
the king of Navarre and the English, Marcial was killed by the 
Parisians. The crude attempt of Marcial and his coadjutators 
to curb the tyranny of the king and nobility served only to 
show the lack of capacity for organization and concerted ac- 
tion on the part of the burghers and peasants. They were 
utterly wanting in regard for the rights of others and that 
self-restraint which is so essential to popular government. 
The authority of kings and feudal despots may be supported 
and maintained over an ignorant and debased multitude mere- 
ly by armed force and regardless of mercy or justice, but, 
as Montesquieu ably points out, popular government can only 
rest securely on justice to each and to all. Marcial and Callet, 
the leader of the peasants, started out in a just cause, but soon 
adopted the methods of the authors of the wrongs of which 
the people complained. If they could have restrained their 
own passions and those of their followers, they might have 
accomplished great good, but the people of that age were not 
prepared for popular government. After Marcial's death, on 
the return of the Dauphin, the popular leaders were taken and 
summarily executed. 



FRANCE 597 

In the fall of 1359 Edward invaded France. After roaming 
about and pillaging the open country without laying seige to 
any of the strong towns he concluded the treaty Bretigny, 
May 1360, with the Dauphin, by which Aquitaine with en- 
larged boundaries was acknowledged as an English province 
freed from French sovereignty, and a ransom of 3,000,000 
crowns was to be paid for King John's release. War over the 
succession to the throne of Castile was participated in by the 
French on one side and the English on the other, and in 1369 
war was again declared by Charles V of France, which result- 
ed in the recovery by the French of most of the territory ceded 
by the treaty of Bretigny without any decisive battles. 
Charles V died in 1380 and was succeeded by his son Charles 
VI then only twelve years old. In his reign civil discord as 
well as 'foreign war harassed and impoverished the country. 
The Burgundian and Orleans factions, with the foreign and 
domestic alliances peculiar to that age, kept up constant strife. 
The Flemish cities, in spite of their wars, grew and preserved 
much of their local freedom. In 141 5 the famous battle of 
Azincourt was fought, in which the French sustained a crush- 
ing defeat and the loss of a great host of the nobility. The 
invention of gunpowder and changes in the military system, 
from the armored knights fighting on horseback without order 
or discipline, all serving for limited periods without pay in 
accordance with feudal law, was gradually changing into a 
more orderly system of paid and systematically organized 
troops. Gunpowder deprived the armored knight of most of 
his superiority over the unprotected and poorly armed foot 
soldier. The war between English and French dragged on 
under Charles VII, a very weak prince. The Burgundians 
aided the English. French fortunes reached a very low ebb 
till during the siege of Orleans by the English Joan of Arc 
appeared and with a magnetic force unique in history roused 
the spirit of the French and led them to victory. Though 
Edward III might treat a worthless prince like King John, 
while a prisoner, with such marked consideration as to make 
him really enjoy his captivity, when the pure-minded and lofty 
souled Joan fell into his hands, they burnt her as a witch and 



598 EVOLUTION OF GOVERNMENTS AND LAWS 

heretic in 1431. With the withdrawal of the Burgundians 
from the English side the fortunes of the latter declined, and 
they were forced to withdraw from the interior. The long 
period of internal discord and English dominion in France 
drew toward its close. In 1439 tne States-General were con- 
vened by Charles VII, and a start was made toward the organ- 
ization of a standing army and a regular system of taxation 
for its support. This aroused the hostility of the nobles, but 
Charles persisted and organized fifteen companies of one hun- 
dred lancers each, which he set to work clearing the country 
of the robbers with which it was infested. In 1453 the Eng- 
lish were driven from all their possessions except Calais, 
Havre and Guines Castle. The long struggle had tended to 
develop a national sentiment in France, and all the brilliant 
campaigns of the English were barren of profit. 

After the close of the reign of Louis XI France entered on 
a career of contests and diplomacy with foreign states, with 
the details of which we are not concerned. Although the 
administrative system had not reached its full development, 
the structure of the French monarchy was already settled. 
The king was the state, and his authority was backed by mili- 
tary power. Under Charles VIII began those Italian wars, 
based on a claim to Naples and Sicily, which were productive 
of so much bloodshed and so little advantage. From this time 
forward the field of military operations widens and France 
plays a leading part among the nations of Europe. The dis- 
tinct progress accomplished was the formation of a compact 
state, developing an orderly though not a just system of in- 
tercourse with and knowledge of the other states of Europe, 
under which industry increased and knowledge was sought. 
Not to a changing form or theory of government during this 
period, but to other causes, must we look for the signs of prog- 
ress and the growth of those sentiments of liberty and equality 
which blazed forth in the eighteenth century. The feudal sys- 
tem was the rule of local petty tyrants, who had no respect for, 
nor sympathy with, any class of laboring or trading people. 
The stratification of society was into the various feudal orders, 
with the serfs at the base and the king at the head, a ruler 



FRANCE 599 

whom his greatest subjects defied, and the churchmen pro- 
fessing brotherhood, but rigorously ruled by church officials. 
The enterprises carried on by feudal barons led to no discus- 
sion of the principles of social organization. The establish- 
ment of the power of the king on a more firm basis and the 
opening of the era of wars between great states had taken 
place by the reign of Francis I, 1524 to 1547. Then came 
that revolution which affected Europe and especially France so 
profoundly, the religious reformation. For centuries the Pope 
and catholic clergy had enjoyed not merely the distinction of 
rank in the religious world, but great temporal power and vast 
revenues. Fondness of display and love of power had become 
quite as characteristic of the popes and prelates as of the 
temporal sovereigns. The creed was tenaciously clung to, but 
the moral teachings of Christ were often forgotten. The sale 
of indulgences to do wrong shocked the moral sense of great 
numbers, in an age when great crimes were common. The 
state of society in France in the sixteenth century was pecu- 
liar. The government was in a stage of transition from the 
anarchy of feudalism to a kingly despotism. The law was a 
mixture of the Salic law of the Franks, the feudal principles 
and the Roman civil law. Religion was no longer the ritual of 
the church, but a faith for which men and women unhesi- 
tatingly gave up all earthly possessions and even life itself. 
Contemporaneously with the opening of the new world to 
view and the discovery of a water route to India and the 
east, there was an awakening to new conceptions of all things. 
The desire to discover new truths, to look deeper into nature 
and know more of man and of the moral obligations resting 
on him, was growing. This desire prompted inquiry, which 
at the same time produced turmoil and advancement. Though 
without any system of public schools for the multitude, France 
then occupied a leading position in its educational institu- 
tions. The great University of Paris, which had its begin- 
nings in the twelfth century, had developed into a large 
institution, where many branches of learning were taught. 
Other universities had also been established at Montpelier, 
Toulouse, Orleans, Angers, Avignon, Cahors and Grenoble, 



600 EVOLUTION OF GOVERNMENTS AND LAWS 

some of which were in a flourishing condition. The civil law, 
medicine and religion were taught. From all these schools 
some light was diffused through the intellectual darkness, and 
most important of all, a growing appetite for truth and an 
increasing perception of the vices and immoralities of the age. 
The printing press had come to give its powerful aid in 
spreading information. While the high clergy were often 
intent only on their own personal aggrandizement, there were 
many students who in reading the Scriptures discovered, not 
merely the alluring promise of bliss in a life to come, but also 
the practical lessons of morality and the sublime virtue of 
the golden rule as a means of improving man's condition here 
on earth. The sixteenth century exhibits, often in the same 
individual as well as in the contentions of parties and factions, 
the struggle between the old savagery and barbarism in their 
most vicious forms, and conscience newly awakened to the 
command to love your enemies. The religious struggle in 
France was not between different states or sections of the 
country, but between neighbors. Men either followed the 
path of the reformation or adhered to the dogmas and the 
mastery of the established church, according to their mental 
bias and surrounding influences. It is difficult in this age to 
comprehend the feelings o;f Protestants and Catholics in those 
times. Protestants were appalled at the immoralities of the 
church and believed that nothing but eternal damnation could 
be meted out to those, who under the guise of religion were 
guilty of so many misdeeds. Catholics felt that Protestants 
were seeking to tear down that church to which they looked 
for protection and safe passage into a life of bliss to come. 
Generation after generation had lived and died in blissful 
confidence in the ability of the priest to pass the dying soul 
safely through purgatory into heaven, and the belief that 
without the aid of the church man was without hope. Deadly 
strife always develops hardness and cruelty, but religious 
wars and persecutions are always more cruel and unrelenting 
than others. 

During the reign of Francis I there were eighty-one exe- 
cutions for heresy in accordance with judicial decrees. In 



* FRANCE 601 

1545 a great number of Vaudians, estimated at 3,000, were 
ruthlessly massacred because of their religious opinions. 
During the twelve years reign of Henry II there were ninety- 
seven convictions and executions for heresy. Though in some 
cases the proceedings were very summary and execution fol- 
lowed arrest quickly, in most the proceedings were deliberate, 
and it cannot be doubted that many people believed that 
heresy was a crime meriting death. The study of the law 
had made such progress that the lawyers were already an im- 
portant factor in the state. The highest court was the parlia- 
ment of Paris, which not only exercised judicial functions, 
but was the medium through which all edicts of the King or 
Pope having the effect of laws were registered. Parliament 
itself was not a law-making power, but it sometimes inter- 
posed obstacles to obnoxious enactments by refusing to regis- 
ter them. The kings overcame the difficulty by causing regis- 
tration to be made without the sanction of Parliament, but 
when in 1557 the papal bull was issued establishing the Inqui- 
sition in France, the Parliament refused to register it. In 
1559 this Parliament was composed of one hundred and thirty 
members, and in 1602, when Biron was condemned, one hun- 
dred and twenty-seven voted for the conviction. The religious 
struggle attained its most fierce manifestation in the Massacre 
of St. Bartholomew's Eve on Aug. 4, 1572, when the Protes- 
tants in great numbers were butchered by the order of Charles 
IX. The number is variously estimated from 10,000 to 100,- 
000. It was the purpose of Charles to exterminate the 
Huguenots at one stroke and thus end the religious strife, but 
in this he signally failed. The moral sense of the Catholics 
was violently shocked, and all Christendom condemned in 
unmeasured terms the bloody butchery. The religious strug- 
gle continued throughout the reign of Charles IX, which ended 
with his death in 1574, and of his successor Henry III, 1574 
to 1589. To the influence of Catharine de Medici, the Italian 
queen mother, was charged many of the evils with which the 
state was afflicted. In 1575 the Holy League, which had been 
first conceived in 1562, came into prominence, and on the 
other side the Protestants were not wanting in numbers or 



602 EVOLUTION OF GOVERNMENTS AND LAWS 

leadership. At Paris the Catholic League partitioned the city 
into five districts with a head man ior each, who soon added 
to their number eleven others. This formed the committee of 
sixteen, which played an important part in the religious war. 
In 1588, when Henry III undertook to garrison the city, this 
committee, under the leadership of the Duke of Guise and 
backed by the populace, barricaded the streets of Paris and 
caused the king to seek safety in flight. On Oct. 6, 1588, the 
States-General, composed of one hundred and eighty nobles, 
one hundred and thirty-four clergymen and one hundred and 
ninety-one members of the third estate, were convoked at 
Blois. Nothing of importance was accomplished by the ses- 
sion, which ended Jan. 10, 1589. The King caused the Duke 
of Guise to be murdered, but the death of the leader did not 
destroy the League. The Parliament of Paris sided with the 
Leaguers, and the parliaments of other chief cities did like- 
wise. The Duke of Mayenne, who succeeded to the Catholic 
leadership, organized a council general of the League, com- 
posed of forty members, for the general direction of its 
affairs. The struggle between Catholic and Protestant was 
popular in character and not merely the quarrel of leaders. 
The league had its committee and was backed by the populace 
at Paris. The Protestants on the other hand- were asserting 
their right to religious liberty, and in doing so were forced to 
deny the temporal power of the king when exerted to compel 
submission to the established form of worship. It was an 
assertion of individual liberty, though without a clear con- 
ception of the significance of the claim. 

The assassination of Henry III by a fanatical monk made 
Henry of Navarre, a Protestant, heir to the throne. The 
Catholics were still largely in the majority and Henry, who 
had been the recognized head of the Protestants, had a diffi- 
cult task before him; but with the force of the sentiment of 
loyalty to the legitimate heir to the throne and a wise policy 
of toleration of religious differences, he accomplished good 
for the state and the substantial restoration of domestic peace. 
His principle of toleration was a principle of liberty of con- 
science, religious thought and expression. The edict of 



FRANCE 603 

Nantes, which he published on April 13, 1598, was a great 
stride forward, though it did not accord entire equality or 
freedom in religion. By it the Protestant form of worship in 
the castles of the lords high justiciary, who numbered 3,500, 
was allowed, and also in the castles of simple noblemen, pro- 
vided the number present did not exceed thirty. The state 
was charged with a provision of 165,000 livres for salaries 
of Protestant ministers, and donations and legacies for their 
support were permitted. The children of Protestants were 
admitted to the schools and universities. The Parliament be- 
ing intensely Catholic there was great difficulty in obtaining 
justice by the Protestants, and a special court, called the edict 
chamber, was established for the trial of causes in which they 
were interested. Catholic judges could not sit in this court, 
except with the consent of the parties. In the Parliaments of 
Bordeaux, Toulouse and Grenoble, the edict chambers were 
composed of two presidents, one Catholic and one Protestant, 
and twelve councillors equally divided. The Protestants re- 
tained control of the towns then in their possession, number- 
ing great and small about two hundred, and their garrisons 
and fortifications were maintained at the public charge. After 
his accession to the throne Henry found it easier to rule as a 
Catholic than as a Protestant, and in 1593 became a Catholic 
and was received into the Church. He issued this edict as a 
Catholic monarch for the pacification of his kingdom, and as 
a measure of justice to his subjects. Henry is also credited 
with a comprehensive plan for the pacification of all Europe 
by confederating all the Christian states, Catholic Lutheran 
and Calvinist, with equal rights. The plan contemplated in- 
dependence in local affairs, the care for common interests 
through central authority and the pacific settlement of all dis- 
putes between states. The recent Hague conferences are 
steps toward the realization of a world wide union of this 
kind. The barbarism of a division of the continent into so 
many hostile camps must some day be generally recognized, 
the simple remedy of efficient cooperation and combination for 
the general good be adopted, and all the vast armies which 
now sap the life of each nation and periodically spread death, 



604 EVOLUTION OF GOVERNMENTS AND LAWS 

destruction and misery over the land, be disbanded to aid in 
promoting the general welfare. The curse of militarism may 
be removed merely by the extension to national disputes of the 
principle of the decision of controversies by reason and the 
judgment of disinterested men, as controversies between in- 
dividuals and subdivisions of a state are now settled. In 
Henry's foreign policy the principle of religious toleration 
played an important part. To check' the power of Austria he 
allied Catholic France with Protestant Germany and England 
against Spain and Austria. Under his rule there was a grow- 
ing respect for law as well as an increased measure of liberty. 
When he became convinced that Biron, who had long been a 
favorite with him, plotted against his authority, instead of 
directing his execution arbitrarily, as Charles IX had com- 
manded that of Coligny and the Huguenots and Henry III 
that of the Duke of Guise, he caused him to be publicly tried. 
The inquiry lasted three weeks, and the one hundred and 
twenty-seven judges in the Parliament of Paris unanimously 
condemned him. Doubtless the accused stood at great disad- 
vantage in a trial with the king as accuser, and the tribunal 
could hardly be called an impartial one, but strict impartiality, 
absolute freedom from all bias, is hardly to be found, unless 
the matter tried is of utter indifference to the judge. It is 
greatly to be regretted that in his private morals Henry was 
conspicuous for weakness rather than strength of character, 
yet in spite of this blemish he stands out as a truly great 
public character, who labored earnestly and successfully to 
protect the public good, not only of his own kingdom but of 
all Europe. During the regency of Marie de Medici, widow 
of Henry IV, and the reign of Louis XIII, Richelieu pro- 
moted the system of absolutism, which attained its highest 
stage under Louis XIV. The power of the feudal lords had 
been waning for more than a century. Under the ministry of 
Richelieu all eyes became steadily fixed on the king as the 
fountain of all power in the state, and the ambitious nobles 
were taught to seek advancement through the favor of the 
king, rather than the power of their armed retainers. Though 
Henry IV had had his councillors, no ministry with a distri- 



FRANCE 605 

bution of well defined powers and functions had been estab- 
lished. Nor did Richelieu develop such a system. His policy 
was directed toward the advancement of the kingly authority 
at the expense of the nobility, and to the exercise of power 
through officers appointed by the king for their fidelity, rather 
than their rank. The Parliaments, of which at the accession 
of Richelieu to power there were nine, namely, of Paris, Toul- 
ouse, Grenoble, Bordeaux, Dijon, Rouen, Aix, Rennes and 
Pau and to which he added Metz, at times manifested some 
degree of independence and assumed powers to regulate tax- 
ation and give advice to the king. In 1641 Louis XIII pub- 
lished an edict prohibiting the Parliaments from interference 
in affairs of administration and confining them strictly to 
judicial functions. Though there were refusals to register 
edicts by some of the Parliaments, opposition was crushed and 
the king's unrestricted power enforced. There were, besides 
the states general of the whole kingdom, states provincial in 
Languedoc, Brittany, Burgundy, Provence, Dauphiny and 
Pau, through which these districts levied the taxes on them- 
selves. These states provincial were convoked by the king 
and varied in their composition according to the district. 
Richelieu's policy was to curtail the power of the states and 
take away all restriction on the kings control of his finances. 
He established in each province overseers of justice, police 
and finance, chosen mostly from the burgesses, into whose 
hands the whole administration of local affairs was committed. 
By an edict of July 31, 1626, all the old castles of the great 
nobles were demolished, and through these overseers the 
powers of the nobility in local affairs were effectually cur- 
tailed. Only twice in his time did Richelieu convoke the 
Assembly of Notables, in 1625 and 1626. On Feb. 24, 1627, 
the last Assembly separated and was never again convoked 
till the revolution of 1789. 

On the death of Richelieu another cardinal, Mazarin, an 
Italian, took his place and, though he encountered intense 
hostility and much internal commotion and external war, he 
died with the full confidence of Louis XIV and as premier 
wielded the actual power of the king. On his death in 1661 



606 EVOLUTION OF GOVERNMENTS AND LAWS 

Louis assumed the duties of his office and notified his min- 
isters that they were only to act on his command. In his 
reign was commenced the systematic distribution of admin- 
istrative functions, with a secretary ifor foreign affairs, one 
for war and the army and another for finance. Neither of 
these had independent authority, but all worked under the 
king. Louis XIV had ideas of order and method superior 
to those of his predecessors. He labored to gather informa- 
tion and to direct the action of all his officers. He was the 
sole source of authority, and in the selection of his agents he 
sought to humble rather than elevate the great folks. The 
nobles however still held title to the land, and through its 
ownership were able to grind the poor to starvation. Louis 
with the aid of able ministers greatly curtailed the diversion 
of moneys collected as taxes into private pockets. By this 
means his revenues were increased and taxes lightened. The 
beginnings of the actual exercise of kingly power by Louis 
contained much that was good. He did much to develop an 
orderly government, with a head laboring daily ifor the wel- 
fare of the state, as he understood it. But Louis sought first 
of all his own aggrandizement. He was lavish in the expendi- 
tures of his court, but he built palaces and public works that 
were both useful and ornamental. Like most despots how- 
ever, he sought to extend his power over his neighbors. The 
Netherlands, Germany, Spain and Italy were subjected to his 
encroachments, and no sooner had his country begun to feel 
the advantages of his firm rule than he plunged it into war. 
The early period was one of glory (so called), for France. 
Her boundaries were advanced, and she took her place as the 
first power in Europe. But however great the successes in 
battle the drain of men and money in great wars necessarily 
impoverishes the nation, and the later years of the reign of 
Louis were years of misery among the people and disaster, 
defeat and loss of prestige in war. Religious toleration, 
established by the edict of Nantes, and which had done so 
much to pacify France, came to an end in 1685, when Louis 
revoked the edict and drove out the Huguenots, to become 
either soldiers in the armies of his enemies or industrious 



FRANCE 607 

workers, furnishing money and supplies to them. The long 
reign of Louis was one of thoroughly recognized right of the 
king to rule, freed from all dictation and interference by the 
aristocracy. Obedience to him was considered the duty of 
all. The plentitude of the king's power and his love of dis- 
playing it drew to his court all the rich and high born of 
the kingdom. The magnificence of his court was noted 
throughout Europe. Nowhere else was there such an exhi- 
bition of wealth and luxury. Internal peace was the marked 
evidence of advancing views of social duty. Foreign war and 
military glory still offered the most alluring field for the am- 
bitious, yet the age was one of intellectual awakening and 
the great names are not alone of soldiers, but of authors, 
artists, scientists and philosophers. Though nothing like at- 
tacks on the established system was tolerated, writers and 
teachers did not fail to discover and declare some of the moral 
truths bearing on the obligations of the ruler to the ruled. 
Priests taught virtue a little more and persecuted heresy far 
less. The luxury and magnificence of the court, to which all 
the great landowners gathered, withdrew from their estates 
whatever advantage might have resulted in their management 
from the education and intelligence of the owners, and left 
them to the care of impoverished peasants. To maintain 
great houses at Paris and Versailles, buy the gorgeous and 
expensive costumes of the time and give costly banquets, re- 
quired the whole product of the estates. The peasants who 
did all the work were mercilessly robbed of the fruits of their 
toil, in order that the butterflies at the palace might appear in 
dazzling brilliancy. Order, obedience and law prevailed, but 
applied law in its aggregate results meant monstrous injustice, 
systematically and • mercilessly enforced. Unfortunately this 
is by far too true of all systems of human laws. The idle 
favorites, who swarmed about the court fawning on the king 
for favors, were mostly quite without merit. True there were 
some such lofty natures as Fenelon, Pascal, Bossuet, Madame 
de Sevigne, La Bruyere, Moliere, Corneille, Racine, La Fon- 
taine and other thinkers and writers, who were more or less 
about the court, whose plantings in the moral vineyard have 



608 EVOLUTION OF GOVERNMENTS AND LAWS 

borne good fruits, but the recipients of the great bulk of royal 
bounty were worse than mere idlers. They were conspicuous 
examples of the corruption of a despotic system, living not 
merely useless, but debauched and vicious lives, not from the 
bounty of a rich king as the historians usually state it, but 
from the fruits of the labors of the needy poor, wrung from 
them either by the public tax gatherers on pretense of pay- 
ment for public service, or as the share of the produce be- 
longing to a landowner through a most unjust legal theory 
of ownership oif the earth. Viewed at large the nation ex- 
hibited a brilliant court, permeated with moral pestilence, and 
a vast multitude of ignorant and spiritless toilers, who labored 
and died in misery and degradation. Happiness had no 
abiding place. At court all was a fever of hopes and fears, 
hanging on the smiles and frowns of a king. 

Though Louis was king till his death, and though he never 
ceased to give personal attention to public affairs, the idea 
contained in the memorable expression "I am the state," 
gained a constantly increasing force in his mind, till the wel- 
fare of the people he should have served ceased to be a matter 
of consideration, and France became in his eyes but a setting 
to display his grandeur and power. As his life drew towards 
its close he witnessed without profit the necessary results of 
his policy. The peasants, artisans and traders were impover- 
ished and reduced in numbers by wars and oppressive burdens. 
The court demanded increased favors to sustain its gaieties. 
Foreign enemies combined against him, and his exhausted 
armies retired before them. Lack oif troops and of money 
paralyzed the state, and famine and pestilence scourged the 
people. 

In 1 71 5 after reigning seventy-two years Louis XIV died, 
leaving the crown to his great grandson, a child five years of 
age. The will of the King, which made his illegitimate son, 
the Duke of Maine, guardian of the young King, and ap- 
pointed a council or regency, was promptly swept aside by 
the Duke of Orleans, who, with the approbation of the Parlia- 
ment of Paris and the populace, assumed the regency, freed 
from the restrictions with which the late King sought to cir- 



FRANCE 609 

cumscribe it. The regent attempted to organize a ministerial 
system with six boards, for foreign affairs, army, navy, 
church affairs, home affairs, and finance. To these were 
afterward added one for commerce. At the head of these, 
instead of men chosen on account of their fitness for work, 
he selected persons of rank, under whom men of inferior 
degree, but more capacity, were placed. The plan proved un- 
successful through lack of merit in his appointees. The 
scheme of Law to relieve the financial difficulties of the time, 
which has met with such severe and oft repeated condemna- 
tion, and which was productive of so many imaginary for- 
tunes and so much real misery, yet had within it the idea, 
which has since been often utilized, of substituting credit 
paper for coin-. His disastrous failure resulted more from 
the avidity with which the people took his shares and turned 
in their money, than from the inherent vice of the scheme. 
Most of the business of today is transacted on the theory that 
there is coin on deposit to pay credit balances due from banks 
and other financial institutions. As a matter of fact there 
is ordinarily about one dollar for every ten of debt in the 
aggregate of the banks, but this in ordinary times is sufficient. 
Confidence now supplies the place of coin. In Law's time 
confidence was excessive at first, but the panic quickly fol- 
lowed, and against panic there is no security. The Mississippi 
company might have been given a basis of real value equal 
to the wildest dream of Law, but it was in fact but a bubble 
too frail to stand the first prick of criticism. 

In 1724 an edict was issued in the name of the young 
King, ostensibly as a tribute to the memory and to carry out 
the design of Louis XIV to extinguish heresy. This edict 
condemned "Preachers to the penalty of death, their accom- 
plices to the galleys for life, and women to be shaved and 
imprisoned for life. Confiscation of property: parents who 
shall not have baptism administered to their children within 
twenty-four hours and see that they attend regularly the 
catechism and the schools, to fines and such sums as they 
may amount to together, even to greater penalties. Mid- 
wives, physicians, surgeons, apothecaries, dome-tic-, relat: 



610 EVOLUTION OF GOVERNMENTS AND LAWS 

who shall not notify the parish priests of births or illnesses, to 
fines. Persons who shall exhort the sick, to the galleys or 
imprisonment for life according to sex; confiscation of prop- 
erty. The sick who shall refuse the sacraments if they re- 
cover, to banishment for life; if they die, to be dragged on 
a hurdle.'' Notwithstanding this savage language the blood- 
thirsty spirit of St. Bartholomew's Eve no longer prevailed in 
the land, and there was little disposition to rigorously enforce 
this edict. It was only here and there that its barbarities were 
carried into effect. The general sentiment of the people had 
moved forward to higher ground. Louis XV exhibited in 
marked degree the inherent weakness and vice of absolute rule. 
He was indolent and voluptuous, though not cruel as despots 
go. It is always impossibe for a single man to know the 
needs of a great country, no matter how energetic and earnest 
he may be, but when that man is inert the state is left to drift, 
and always drifts into confusion and misfortune. Though 
France coveted dominion in India and America, there was no 
strong combination of vigorous men working in concert to 
maintain it. An idle king and ministers, whose main purpose 
was to live in ease and luxury, neglected giving needed sup- 
port to the adventurous spirits, who labored to extend French 
power, trade and influence in the east and west. England 
with its navy had become master of the sea, and a dissolute 
court had not the foresight and self-denial to expend the 
revenue in building a navy, but it was squandered in luxurious 
living. India, Canada and the valley of the Mississippi were 
lost, and passed under the rule of its great rival, England. 
Continental wars wasted blood and treasure without profit. 
The Seven Years' war, formally declared by France against 
England in January 1756, involved before its conclusion Aus- 
tria, Prussia, Russia, Spain and Italy and, though fought main- 
ly in Germany, impoverished and exhausted all Europe. Prus- 
sia bore its heaviest brunt and Frederick the Great estimated 
that the participants lost 800,000 men. The French court 
is well described by Montesquieu. 

"Ambition amidst indolence, baseness amidst pride, the de- 
sire to grow rich without toil, aversion from truth, flattery, 



FRANCE 611 

treason, perfidy, neglect of all engagements, contempt for the 
duties of a citizen, fear of virtue in the prince, hope in his 
weakness, and more than all that, the ridicule constantly 
thrown on virtue form, I trow, the characteristics of the 
greatest number of courtiers, distinctive in all places and at 
all times." 

The very firmness with which the doctrine of absolutism 
had been riveted on the French people, under a weak and 
indolent monarch such as Louis XV, afforded the example 
and the opportunity for successful attack upon it. King and 
court were morally and intellectually weak, but there was 
growing strength among the people. Students and philoso- 
phers were already looking behind and beyond the written 
edicts, canons and decrees, for the living truth as the only 
just basis of authority. Enlarged intercourse with the people 
of other European states, with the new world in America and 
the old in India and the east, stimulated inquiry and research 
into every field of knowledge. There were many active brains 
in France busily at work. Montesquieu, Buffon, Voltaire, 
Rousseau, Diderot, Alembert, Fontenelle are great names. 
In seeking new truth they discovered old error. The falsity 
of the claims to dominion over mens thoughts and consciences, 
their lives and property, became apparent. The ifalsity of the 
claim of superiority, which had so long supported the king 
and those who thronged his court, could no longer be con- 
cealed. Vice and immorality appeared as such though prac- 
ticed by kings, cardinals and courtiers. The courts too, where 
questions of right were daily discussed, though blinded by 
adherence to established rules by which they were bound, 
whether right or wrong, at least perceived that the king ruled 
only by force of law, and that he too was therefore inferior to 
law. The first internal struggle leading up to the great revo- 
lution was with the Parliaments and over questions of taxa- 
tion. This led to the arrest of the judges and finally to the 
dissolution of the Parliaments and the complete reorganiza- 
tion of the judiciary in 1771. Louis brooked no questioning 
of his power. He had said to the Parliament of Paris, "The 
magistracy does not form a body or order separate from the 



612 EVOLUTION OF GOVERNMENTS AND LAWS 

three orders of the kingdom, the magistrates are my officers. 
In my person alone resides the sovereign power, oi which the 
special characteristic is the spirit of counsel, justice and 
reason ; it is from me alone that my courts have their existence 
and authority." How little did he understand his own weak- 
ness and the growing strength and increasing knowledge of 
the people. 

He died in 1774, and his grandson Louis XVI at the age 
of twenty came to the throne with Maria Antionette, daughter 
of Maria Theresa of Austria, as his queen. He was a weak 
but kindly man, neither great or strong enough to direct the 
affairs of so great a state. He had the fortune to call to his 
aid some strong and honest ministers, who introduced re- 
forms in the finances beneficial to the state, but correspond- 
ingly destructive of the system by which the court favorites 
obtained their greatest incomes. Turgot first and then Necker 
were able men, who sought to do the country honest service; 
but the corrupt courtiers gave them no rest and finally ob- 
tained their dismissal. The American Revolution, following 
on the discussions of such writers as Voltaire and Rousseau, 
produced a profound impression on the public mind. The 
opportunity for checking the growing ascendency oi Eng- 
land, even though to do so required an alliance with rebels, 
who in declaring their independence had denied the doctrine 
of the divine right of kings and in its place asserted that all 
governments derive their just powers from the consent of 
the governed, was too tempting to be neglected. Bourbon 
France and Spain, exponents of the doctrine of unlimited 
monarchy, joined forces with the freemen of America against 
England. The result in America was the birth of a great 
republic, which became the model of all the states of the new 
world. Not less profound was the impulse given to the grow- 
ing conceptions of liberty in France. Already disgusted with 
its decaying despotism and longing ifor a new national life, 
the nation seized with avidity the inspiration and sought at 
one bound.to gain the lofty pinnacle of "liberty, equality and 
fraternity." The King was a reformer but without much 
knowledge of affairs or steadiness of purpose. At the in- 



FRANCE 613 

stance of Necker he abolished mortmain and serfdom on the 
royal estates, put an end to the preliminary tortures to which 
defendants were put by the soft name of the "preparatory 
question" and caused more humane treatment of those con- 
fined in prisons. 

The age of intrigue for mere power had passed, and the 
love of wealth and display was the overmastering passion of 
courtiers. Financial difficulties, arising from the inordinate 
demands for money to waste in vain display rather than for 
legitimate governmental uses, were sources of anxiety to the 
King and his ministers. The nation was vitally interested in 
the reforms proposed by Turgot and Necker, but the favorites 
were equally interested in defeating them, and were an active 
force. Public sentiment was without coherence or steadiness. 
The court constantly called for more money. The people re- 
sisted increased taxation. On Dec. 29, 1786, Louis announced 
in council that he would convoke an assembly of notables on 
January 29 "to communicate to them my views for the relief 
of my people, the ordering of the finances and the reforma- 
tion of abuses." The session did not open till Feb. 22, 1787. 
It was not a representative body, but composed of one hun- 
dred and forty-four members, all named by the King as fol- 
lows : seven princes of the blood royal, fourteen archbishops 
and bishops, thirty-six dukes and peers, twelve councillors of 
state and masters of requests, thirty-eight judges, twelve depu- 
ties of states districts and twenty-five municipal officers. 
When this assembly convened the fact that France had out- 
grown despotism became apparent. The public demanded an 
account of the conduct of affairs, and to know what became 
of the revenue before undertaking to provide a greater one. 
An annual deficit of 100,000,000 livres a year had been stead- 
ily forcing the treasury into deeper and deeper embarassment. 
The session closed on May 25, 1787, without any other result 
than increased publicity of the financial situation and a more 
widespread understanding of the nature and extent of the 
abuses which prevailed and by which the privileged nobles, 
tax farmers, monopolists and court favorities grew rich at 
the expense of all the industrial classes. The Assembly left 



614 EVOLUTION OF GOVERNMENTS AND LAWS 

the King to deal with his difficulties the same as before. His 
edicts relating to the stamp tax and territorial subvention 
were registered, and then the registration was declared null 
by the Parliament of Paris. The King sent the Parliament 
away to Troyes. The growth of the idea that all were sub- 
ject to law was expressed by a decree of the Parliament, in 
which it was said, 'The monarchy would be transfigured into 
a despotic form if ministry could dispose of persons by sealed 
letters, property by beds of justice, criminal matters by change 
of venue or cassation and suspend the course of justice by 
special banishments or arbitrary removals." Though the prin- 
ciples thus declared may meet approval, they were invoked to 
sustain privilege rather than to enforce justice. But the idea 
that the land and the people belonged to and existed for the 
king and his court was fast being supplanted by the better one 
that the government, whatever its form, must serve the people 
and promote their welfare. Though we read so much of the 
difficulties with which the government was surrounded, those 
difficulties did not have their basis either in exceptionally bad 
natural or business conditions, nor in the ambitions of rebel- 
lious subjects, but in the fact that the nation had outgrown 
its governmental system and demanded better principles and 
more efficient execution of them. The nation clamored for 
the States-General, the ancient representative body of the 
kingdom. On Aug. 6, 1788, a decree was promulgated for 
their convocation on the ensuing 1st of May. There was much 
agitation of the questions as to their composition and the 
representation and mode of choice of the Third Estate, the 
only representative of popular elements. An Assembly of 
Notables was again convened Nov. 6, 1788, but adjourned on 
December 12 without accomplishing more than the discussion 
and agitation of the general subject of governmental and fi- 
nancial reform. The composition of the States-General was 
finally determined by the King as follows, 1. There should be 
at least 1,000 deputies. 2. That the number should be formed 
as nearly as possible in compound ratio to the population and 
taxes of each baliwick. 3. That the number of deputies of 
the Third Estate should be equal to that of the two other orders 



FRANCE 615 

together. They were convoked for April 27, 1789. Later the 
number was fixed at 1,200; citizens who were taxpayers were 
declared electors. The elections caused a ferment throughout 
the provinces, the like of which had never before been known 
in any country. The King desired to effect reforms, but was 
without a definite policy. He had called together representa- 
tives of the nation to consider and provide for its needs with 
no further preparation than a partial understanding of the 
gross abuses of the decaying monarchy. Naturally and logi- 
cally the first inquiry was directed toward ascertaining what 
was wrong. The one overshadowing fact disclosed to even 
dull minds was the unmerited power and privileges of the 
nobles and high clergy and the lavish extravagance of the 
court. Bad harvests aggravated the distress of the poor, but 
never before had so much been done by the king and the rich 
to relieve them. Charity did not satisfy, when the poor la- 
borer was taught by the agitators that his rights were equal 
to those of the idle court favorites. 

Though it is not often mentioned, the American colonists 
derived their ideas of personal liberty and individual dignity 
to some extent from the Indians, who absolutely denied the 
authority of rulers. The dissemination of American ideas, 
thus taken from the savages, among a people of most lively 
sensibilities, was greatly facilitated by the students and ad- 
mirers of Greek and Roman liberty. The philosophers had 
prepared the way for the repudiation of monarehial corrup- 
tion. The nation was ready to condemn the bad government 
and the false theory of class superiority and robbery with 
which it was oppressed, but it was not prepared to construct 
a new system. When the States-General convened, separate 
rooms were provided for the noblesse and the clergy, but the 
Third Estate, equal in numbers to both, had only the throne 
room, intended for the joint meetings of the three orders, in 
which to assemble. The verification of credentials of mem- 
bers was left to the assembly itself, as well as the question 
whether the sittings should be in one or separate chambers. 
The Third Estate, representing the common people, was in 
possession of the assembly room, and after inviting the other 



616 EVOLUTION OF GOVERNMENTS AND LAWS 

orders to attend proceeded to determine who were en- 
titled to seats, admitting such of the inferior clergy and no- 
bility as chose to come in. They chose the name of National 
Assembly, by which this most memorable gathering is known 
in history. When the session was opened by the King at 
Versailles on May 5, there were about 1,100 deputies present, 
of whom 595 belonged to the Third Estate; and of these 
three-fifths were lawyers. 

The States-General had been summoned by the King to aid 
him with money and to still the complaints against abuses, 
but when convened it proceeded to act, not as an aid to a 
sovereign king, but as the representative of a sovereign peo- 
ple. On June 20, after having undertaken to annual all the 
decrees of the Assembly, the King caused the doors of their 
hall to be closed and decreed a royal session on the 22nd. 
The Assembly met nevertheless in a tennis court and passed 
a decree, "That the National Assembly considering itself 
called to determine the constitution of the kingdom, to effect 
the regeneration of public order, and to uphold the true prin- 
ciples of the monarchy, declaring that nothing shall prevent 
its continuing its deliberations, and that wherever its members 
are united, there is the National. Assembly ; Decrees that all 
the members of this Assembly shall this instant take a solemn 
oath never to separate, until the constitution of the kingdom 
be established and confirmed upon solid foundation." All the 
deputies but one took the oath. On the 22nd, the royal ses- 
sion not taking place, they assembled in the church of St. 
Louis, where the majority of the representatives of the clergy 
joined them, one hundred iforty-eight in number. On the 23rd 
the King opened the session with a speech and caused a decla- 
ration to be read declaring null all acts of the Assembly and 
limiting their deliberations to certain subjects, mainly relating 
to taxation; adding, "None of your projects, none of your 
ordinances, can have the authority of law without my special 
approbation. I command you, gentlemen, to adjourn im- 
mediately, and to appear to-morrow morning, each in the 
chamber appropriated to his order, to resume there the usual 
sessions." The king left, followed by the nobility and part 



FRANCE 617 

of the clergy, but the Third Estate remained. The grand 
master of ceremonies said to Baillie, president of the Assem- 
bly, "Monsieur you have heard the King's orders"? Baillie 
replied "I cannot dissolve the Assembly until it has deliberated 
upon the matter. I believe that the assembled nation can re- 
ceive no command." This was revolution. It denied the 
sovereignty of the King. On the 24th, forty-seven noble depu- 
ties with the Duke of Orleans at their head took seats in the 
Assembly, and on the 27th the King, overawed by the popular 
tumult at Paris and the desertion o;f the French guard, who 
sided with the populace, to secure his own safety requested 
the nobles to repair to the common hall, which they did. 

Who can adequately describe the awakening of a great na- 
tion after many centuries of tyranny, maintained in accord- 
ance with rules called laws, which their teachers both spiritual 
and temporal have taught the people to obey as of divine 
origin and sanction, to a realization of the monstrous falsity 
of the whole system. The idols were broken and found to be 
but base impostures. The ferment spread throughout the 
nation as the great leaders of the Assembly boldly declared the 
self-evident truths of liberty and justice. The fruits of the 
teachings of Montesquieu, Fenelon, Rousseau and Voltaire 
ripened all at once in the hot house of the Assembly. In 
Paris the most exalted aspirations of pure patriots for an 
age of justice cooperated with the hatred and savagery of the 
dregs of society, who called for vengeance on those they 
deemed the cause of their degradation. The Assembly led 
the march of ideas grandly at Versailles, but the ferment 
went on in the multitude at Paris. The courtiers looked to 
the army to preserve the King's authority and protect them. 
The revolutionary forces in Paris organized. There were the 
electors, the Orleans party and the Breton, afterwards called 
the Jacobin Club. On July 11 the King dismissed Necker, 
the only minister in whom the people had confidence. On 
the fourteenth of July the Parisians broke into the Dome des 
Invalides, seized 2,800 guns and stormed the hated Bastile. 
the prison fortress, which stood as a symbol of tyranny, and 
at once proceeded to demolish it. There were lives lost in 



6i8 EVOLUTION OF GOVERNMENTS AND LAWS 

the combat and faithless executions of prisoners taken, whose 
blood the mob demanded. The national guard was organized 
by authority of the Assembly and the districts of Paris with 
La Fayette at its head. Uprisings were not confined to Paris 
but spread throughout the provinces and were everywhere di- 
rected against those who profited by the abuses of the old 
regime. 

The Assembly proceeded with its deliberations, which 
reached a climax on August 4, expressing at one session the 
condemnation of a vast system of oppression. From 161 4 till 
1 789 the nation had not been consulted in regard to public af- 
fairs, despotism and privilege had flourished at the expense 
of the people. No wonder that the King and the representa- 
tives of the people were so wide apart in their purposes. The 
King looked only from the standpoint of long recognized 
power. The assembly was profoundly conscious of the gross 
and manifold abuses of that power. The King wished in- 
creased revenues and tranquil submission to authority. The 
people demanded relief from excessive burdens and some 
measure of justice. The many lawyers of the Assembly un- 
derstood the laws and appreciated the inequity of them. 
Many of the nobility and clergy recognized the moral inde- 
fensibility of their great privileges. On the evening of this 
memorable session the Viscount de Noailles, speaking to the 
demand of the government that a decree be passed to put an 
end to the disturbances in the provinces by inviting the people 
to obey the ancient laws till modified, declared that the only 
means of restoring peace was to decree immediately a pro- 
portional levy of taxes on all citizens ratably, the adjustment 
oif farm rents on the basis of income, and the abolition of 
statute labor, mortmain and all personal servitude. This blow 
at feudal privilege was seconded by the Duke d' Aiguillon, the 
richest nobleman of France. No voice was raised in defense 
of feudal injustice. Then it was demanded that the recipients 
of royal favors, the court seigniors, should bear their part. 
The Dukes of Guiche and Mortemart replied that they were 
ready to renounce the king's benefits and share the common 
burdens. Then privilege after privilege was attacked in rapid 



FRANCE 619 

succession. Employments were opened to all citizens alike, 
and penalties for crime were made the same to all classes. 
Feudal courts, through which the nobles were judges over 
their vassals, were abolished. Hunting rights, enjoyed only 
by the nobility, were opened to all. Then came the turn of 
the clergy; the cures were shorn of their perquisites, and the 
bishops of their titles. Having disposed of the privileges of 
the nobles and clergy, those of the provinces and cities were 
brushed away, and the deputies for Brittany, Provence and 
Languedoc, and for Paris, Marseilles, Bordeaux and Lyons 
renounced all their great advantages with respect to imposts. 
Then came the suppression of the privileges of freemen and 
tradesmen in the monopoly of work. Thus in a single night 
sitting from 8 p. m. to 2 a. m. fell the whole system of 
privileges, and in its place stood the great French nation com- 
posed of citizens, each with equal rights before the law. Never 
in all time was an equal number of abuses exposed and laid 
low by any representative of a nation at a single session. 
Radical, thorough and far-reaching as these measures were, 
they were all clearly and unqualifiedly right, and this accounts 
for the celerity with which each abuse if ell in its turn. 

On the twenty-sixth of the same month the great work of 
the fourth was supplemented by the adoption of the following 
Declaration of the Rights of the Man and of the Citizen. 
"1. Men are born and remain free and equal in their rights. 
2. These rights are : liberty, property, safety and resistance 
to oppression. 3. The principle of all sovereignty resides in 
the nation. No body, no individual can exercise" authority 
not emanating directly from it. 4. Liberty consists in the 
power to do all that which does not injure others. 5. Law 
has the right to forbid only actions detrimental to society. 
6. Law is the expression of the general will. All citizens 
have the right to concur personally or through their repre- 
sentatives in its enactment. It should be the same ifor all, 
whether it protect or whether it punish. All citizens being 
equal in its eyes, are equally admissible to all dignities, public 
places and employments, according to their capacity, their 
virtue and their talents. 7. No man can be accused, arrested 



620 EVOLUTION OF GOVERNMENTS AND LAWS 

or imprisoned save in cases determined by law and according 
to the forms it has prescribed. 8. The law should establish 
only penalties strictly and evidently necessary, and no one 
can be punished save in virtue of a law established and pro- 
mulgated before the offense and legally applied. 9. Every 
man being presumed -innocent until he has been proven guilty, 
if it is judged indispensable to arrest him, every rigor not 
necessary to secure his person should be severely reproved 
by tne law. 10. No one shall be disquieted on account of his 
opinions, even his religious ones, provided their manifestation 
does not disturb the public order established by law. 11. The 
free communication of thoughts and opinions is one of the 
most precious rights of man. Every citizen can therefore 
speak, write and print freely, except he abuse his liberty in 
cases determined by law. 12. The guaranty of the rights of 
the man and the citizen necessitates a public force. 13. For 
the maintenance of the public force and for the expenses of 
administration, a general tax is indispensable. It shall be 
equally divided among all citizens, in proportion to their 
ability. 14. All citizens have the right to aver of themselves 
or through their representatives the necessity of the public 
tax, to freely consent to it, to watch over its distribution, to 
determine its quota, its assessment its collection and its dura- 
tion. 15. Society has the right to demand of every public 
agent an account of his administration. 16. Every society in 
which the guaranty of rights is not assured, nor the division 
of authority determined, has no constitution. 17. Property 
being an inviolable and sacred right no one can be deprived of 
it, unless when public necessity legally averred, evidently de- 
mands it, and under the condition of a just and previously ar- 
ranged indemnity." 1 This was the grandest chart of liberty 
and justice ever proclaimed, but the struggle to enforce its 
precepts was yet to come. To give form to a reorganization 
of society, which should secure the enjoyment of these prin- 
ciples, was a task of ifar greater difficulty than to formulate 
and declare them. The heart of the nation responded ad- 
mirably to the lofty sentiments of the Assembly, and, though 

1 Martin, 1-60. 



FRANCE 621 

there were conflicts in various quarters, the desire for a new 
order of things was general. Everywhere the people pro- 
ceeded to reconstruct and organize. The cities chose their 
magistrates, and the national guard was organized through- 
out the provinces. The Assembly undertook to reconstruct 
the whole system of government. The old Parliaments were 
abolished and a graded system of courts, from justices of the 
peace with jurisdiction in petty cases to a court of cassation 
with jurisdiction for the correction of errors of law over the 
whole nation, was devised. Intermediate were the district 
courts, composed of judges elected by the people. Jury trial 
was provided ifor in criminal cases. Commercial tribunals 
for the merchants were" also established. In place of the 
ancient thirty-two provinces the country was divided into 
eighty-four departments, each of which was divided into dis- 
tricts and these into cantons. Primary assemblies were to be 
held in the cantons, which were to choose members of the de- 
partmental assembly, and these were to name the members of 
the National Assembly. The suffrage was restricted to citizens 
twenty-five years of age, who had lived one year in the coun- 
try, paid a direct tax amounting to three days labor and who 
were not hired servants. Local self-government was provided 
through representative bodies in the cantons, districts and 
departments. The king had the right to suspend local ad- 
ministrations not in accordance with his orders for the exe- 
cution of the laws, but subject to confirmation or abrogation 
by the Assembly. 

The spontaneous movement of the people in the direction 
of reorganization did not stop with the choice of local officers 
and the organization of the guard. To defend against law- 
less bands and apprehended dangers they formed leagues one 
with another. This movement began in September 1789 and 
continued till the Federation spread throughout all France as 
a pledge and bond oif concord and union. On July 14, 1790, 
the anniversary of the taking of the Bastile, a grand festival 
was held at Paris, attended by 15,000 deputies representing 
the national guard and 11,000 soldiers and sailors from the 
army and navy. The event was a joyous one. La Fayette in 



622 EVOLUTION OF GOVERNMENTS AND LAWS 

the name of the national guard took the civic oath, and the 
King said from his throne, 4 T King of the French, swear to up- 
hold the constitution decreed by the National Assembly and 
accepted by me." A great banquet and fete followed. The 
revolution seemed to have been accomplished, and the spirit 
of concord and fraternity prevailed everywhere. This trans- 
port of lofty sentiment presented a spectacle not to be decried 
because of the terrible days that were to come. It was a 
day's realization of a possible .future, only to be made perma- 
nent by a long struggle and much suffering. In December 
1789, in order to supply funds for the pressing necessity of 
the state, it was resolved to sell the lands and buildings be- 
longing to the Crown, — except the palaces- and forests, — and 
part of the church property which had been declared to belong 
to the nation ; but as this would require time, negotiable bonds 
amounting to 400,000,000 livres were issued and secured by 
a pledge of this property. As they were not readily accepted, 
they were given a forced currency. In September 1890, finan- 
cial difficulties having still increased, a further issue of 800,- 
000,000 was authorized. The scheme of Law in substance 
was thus again resorted to. 

While the just principles of the revolution commended 
themselves to the moral sense of the people generally, ancient 
prejudices and the habits and opinions passed down from gen- 
eration to generation could not be eradicated in a day or a 
year. The nobility had been accustomed to despise all useful 
labor, to scorn all activities but those of war and the court. 
Their personal following had been accustomed to look solely 
to them for employment and support. The structure of so- 
ciety could not be demolished and reorganized at a single 
stroke. More deep seated still was the reverence for the 
established church, to which a great majority of the people 
adhered. Religious habits are strong everywhere and among 
an unlearned people, such as the masses of the French then 
were, the influence of the clergy is very powerful. When con- 
fronted in the Assembly by the brilliant leaders of the revolu- 
tion, the representatives of the priesthood had yielded to the 
demands of justice, but when the body of the clergy were 



» FRANCE 623 

called on to give up the great properties and privileges they 
had so long enjoyed, selfishness again resumed its sway, and 
the sacredness of ecclesiastical rights was asserted in oppo- 
sition to the authority of the Assembly. The Pope too inter- 
posed his authority against the destruction of ecclesiastical 
privilege. The great multitude of priests high and low had 
been accustomed to a certain scale of living at the expense of 
the people. To adjust themselves to a complete change of 
system was no easy task, and all the inertia of a great and 
long dominant religious establishment was opposed to the new 
order of things. Though many individuals among the priest- 
hood were most zealous and intelligent . reformers, and 
though a large portion of the representatives of the clergy 
had joined with the Third Estate in the most radical measures 
of the Assembly, the great church organization still stood 
riveted to the traditions and prejudices of the past and hostile 
to the attacks on its great abuses of privilege. 

The nobles, though many of them had been carried along 
by the waves of lofty sentiment that ruled the Assembly, and 
though among them were earnest and thoroughly determined 
reformers like La Fayette, were still as a class tied to all that 
was bad in the structure of society. Deprived of their great 
privileges, many of them were simply contemptible as men. 
Without a habit of useful effort or a desire to do good in the 
world, they found themselves cast down from their positions 
of superiority and rated at their true value. Intrigue for 
unmerited advantage had been in large measure their occupa- 
tion under the monarchy, and intrigue to regain their privi- 
leges was their natural recourse when the revolution came. 

These powerful forces, the nobles and their dependents and 
the clergy, were to be overcome within the state before the 
fruits of the revolution could be made secure. Without the 
state dangers threatened on every hand. The spirit of the 
revolution was opposed to the spirit of class and church privi- 
lege, which prevailed everywhere in Europe. All the ruling 
forces of all the neighboring states were vitally interested in 
maintaining the abuses of power which the revolution had 
overthrown. The claim of the right of the people to rule 



624 EVOLUTION OF GOVERNMENTS AND LAWS 

was destructive, not only of monarchical authority but of all 
that vast, false and vicious system of lay and ecclesiastical 
aristocracy, which for so many ages cursed and oppressed the 
multitude. The leaders of the revolution soon perceived that 
all these forces were to be reckoned with. Distrust, often 
well founded, caused the patriots to closely watch the old 
aristocracy. The Jacobin Club became the most potent organi- 
zation of the enemies of privilege. Its headquarters were in 
Paris, where most of the leaders of the Assembly were mem- 
bers; it established branches in every part of the kingdom, 
with which it kept up an active correspondence. 

The Assembly reorganized the clerical establishment and 
required the clergy to take the civic oath. The Pope inter- 
posed his authority and by his letter suspended from their 
functions those priests who having already taken the oath did 
not retract it within forty days. Refractory bishops and 
priests sought to arouse their flocks to oppose the authority 
of the Assembly. The Assembly had usurped functions long 
regarded as belonging exclusively to church authority. Louis 
had his Easter services in 1790 performed by a refractory 
priest. This was denounced as treason. On the night of June 
20, 1 79 1, the King and Queen fled from the Tuileries through 
an unguarded gate, leaving a proclamation protesting against 
all the acts to which he had assented during his captivity. 
Great was the commotion at Paris. At Varennes the ifugitive 
King and Queen were arrested on the night of the twenty-first 
and the next day they were taken back to Paris. General 
Bouille, who had undertaken to guard the King's flight, found 
himself unable to do so. The whole country rose against 
him, and many of the troops sided with the Assembly, which 
had ordered that the King be brought back. By order of the 
Assembly the King and Queen remained at the Tuileries under 
guard. The King expressed himself as satisfied that the people 
of France supported the Assembly. On July 17 there was a 
most unfortunate tumult at the Champ de Mars, the scene of 
the festivities of a year before, during which the national 
guard fired on the multitude and killed many. On Sept. 3, 
1 791, the Assembly, having completed the revision of its work, 



FRANCE ' 625 

bore the constitution to the King for his approval. He sent 
his acceptance ten days afterward, and on Sept. 14 he went 
to the Assembly and there swore to be faithful to the nation 
and to the law. On the thirtieth he attended its closing ses- 
sion, and the great National Constituent Assembly ended its 
labors. Of it La Fayette said, "The Assembly dissolved vol- 
untarily, without any of its members having won either for- 
tune or place, or titles, or power; and we confidently affirm 
that never was an association of men led by a truer devotion 
to all pertaining to the liberty and consequently to the real 
honor of a nation." 

The elections for the new Assembly had taken place in 
September. It opened October 1, 1791 with seven hundred 
and thirty members, including many young men twenty-five 
to thirty years old. On the seventh the king attended and 
made a short address, favorable to the principles of the con- 
stitution. Many of the nobility had fled from France and 
gathered upon the German frontier, where they constantly 
plotted and solicited foreign aid to overthrow the constitution. 
Decrees were issued recalling them, and complaints were made 
against the governments which sheltered them. On April 20, 
1792, the Assembly declared war against the King of Hungary 
and Bohemia. The approach of foreign enemies and the dread 
of internal conspiracies kept the nation and the capital in a 
ferment. The undisciplined army at first met with reverses, 
which ardent revolutionists were disposed to charge to treason. 
The radicals clamored for the deposition of the King. On 
Aug. 10, 1792, the mob invaded the Tuileries, from which the 
King and Queen took refuge in the Assembly. The Swiss 
guard, having fired into the throng, were massacred. The 
Assembly overawed by the mob passed a decree, "That the 
French people is invited to form a National Convention. The 
chief of the executive power is suspended from its [functions 
until the National Convention has spoken. Every public func- 
tionary and every soldier, who in these days of alarm shall 
abandon his post, is declared a traitor to the country." The 
right of suffrage was extended to all citizens over twenty-five 
living from the proceeds of their labor. On the next day the 



626 EVOLUTION OF GOVERNMENTS AND LAWS 

primary elections were fixed for August 26 and the meeting 
of the convention for September 20. 

The power that had directed the attack on the Tuileries 
and that now rose into unenviable prominence was the rep- 
resentative of the sections of Paris. At a new election their 
number was raised to 288, who assumed the general powers 
of the Paris Commune. Never was there such a lamentable 
exhibition of the evil effects of mutual distrust and threats of 
vengeance as at this time. Ardent republicans clamored for 
the execution of the political prisoners. Royalists in bravado 
threatened death to the revolutionists when the power of the 
king should be restored. The air was filled with talk of blood 
and the passions of the most brutal became thoroughly 
aroused, while even the more humane lived in an atmosphere 
filled with the contagion of violence and malice. The Paris 
Commune appointed a Committee of Surveillance, composed 
of violent, bad men, including Marat the Madman. On Sep- 
tember 2 twenty priests, who refused to take the oath, were, 
while being transferred to the Abbaye prison, nearly all massa- 
cred by their guards. Then ifollowed the slaughter of other 
prisoners under the direction of this Committee, backed by a 
bloodthirsty mob. No public authority interfered. All seemed 
paralyzed. The general public conscience, which had been 
warped by the intemperate language of extremists, did not 
awaken to the enormity of the crimes which were being com- 
mitted till it was too late. The slaughter went on through 
the second and third and did not cease till the sixth, during 
which time more than 1,300 victims suffered death. Only 
about one-third of these were political offenders. The rest 
were prisoners charged with crime. 

By the seventeenth the Assembly began to reassert its 
authority. It ordered new elections for members of the Con- 
vention in Paris, where Marat and other leaders of the massa- 
cre had been chosen through intimidation of the better 
elements, prohibited all night searches, authorized all persons 
to resist violation of their domicils by force, and required the 
mayor's signature to all orders of arrest. It further decreed 
that in any town where the legislative body was in session, 



FRANCE 627 

whoever sounded the tocsin or fired the alarm gun without 
order should be put to death. On September 21 the As- 
sembly passed out of existence and the National Convention 
took its place. 

The first important act of the Convention, passed by ac- 
clamation on that day was, "The National Convention decrees 
the abolition of royalty in France." It was' further decreed 
that all public enactments should date from September 22 as 
the first day of the year 1 of the Republic. On the borders 
the armies of France were gaining victories, not so much by 
force of numbers as of ideas. The liberty held out to people 
everywhere was gladly accepted in Belgium, Savoy, Nice and 
along the Rhine, and the spirit animating the army gave it a 
new force to which the soldiers oi kings were unaccustomed. 
On December 15 the Convention decreed that in territory oc- 
cupied by the armies of France the generals should proclaim 
the abolition of existing imposts, titles, feudal claims, chattel 
or personal servitude, and exclusive rights of the chase, and 
all privileges, and "proclaim the sovereignty of the people 
and the abolition of all existing authorities; they shall con- 
voke the people into primary assemblies to organize a provis- 
ional administration." 

The trial of the King on the charge of treason by the Con- 
vention had been in progress, and on January 15 and 16 a 
vote was taken on three questions. On that of guilt 683 out 
of the 721 members voted in the affirmative. On the question 
of submitting the decision to ratification by the people there 
were 424 votes against to 283 for. On the penalty 387 voted 
for death against 334. On the twenty-first he was executed. 
Following a levy ifor 300,000 men to meet the enemies of 
France, there was a bloody revolt on the lower Loire in La 
Vendee. Dumouriez, who commanded the army in Belgium, 
turned traitor and sought to deliver the army to the enemy. 
England, in which there had been some sympathy with the 
revolution, was shocked by the execution of the king, and its 
interests were attacked by the course pursued in the Lowlands. 
It began preparations for war. Distrust grew among the 
republican factions. On March 9 the Convention established 



628 EVOLUTION OF GOVERNMENTS AND LAWS 

the revolutionary tribunal to pass sentence on conspirators and 
counter revolutionists. On April 6 a committee of safety 
composed of nine members, to deliberate in secret, was estab- 
lished, to take the place of a prior committee of twenty. This, 
the Committee of Public Welfare, became the executive head 
of the nation, with Danton and Cambon as its leading mem- 
bers. It was to be changed every month. On May 18 a com- 
mittee of twelve was appointed by the Convention to inquire 
into the conduct of the Commune. This met with violent op- 
position from the radicals of the city, and the commission was 
soon abolished. The radicals were not appeased and on June 
2 the Parisian mob, under the lead of Marat, invaded the con- 
vention and by intimidation forced it to vote the arrest of 
thirty-one of its most patriotic members, who opposed the 
violent measures of the Eveche and the Jacobins. Nothing 
can better show the prevalence of a genuine spirit of progress 
than the fact that, amid all the turmoil and violence with 
which they were surrounded, the Convention on the third and 
fourth of June appointed special committees to prepare the 
civil code, to offer rewards to authors of good elementary 
school books, and to regulate the division of the public prop- 
erty. On June 23 a new constitution was adopted, which con- 
tained among others a provision, that laws should be submitted 
to a vote of the people in case within forty days after passage 
by the Assembly one-tenth of the primary Assembly in half 
the departments plus one objected to the law, otherwise the 
law would stand. This constitution never became operative. 
Counter revolutions within the state at Lyons, in La Vendee 
and at other places and war with foreign powers called for 
the utmost vigor. On August 23 the Convention decreed a 
levy for active service of all unmarried citizens and childless 
widowers from eighteen to twenty- five years of age, and 
called on all citizens en masse to aid in their organization and 
equipment. On August 15 Cambon presented a plan, which 
the Convention adopted, for the consolidation and recording 
in "The Great Book" the items of the public debt, to bear 
five per cent interest. Under the monarchy all had been 
confusion. This became the foundation of an orderly sys- 



FRANCE 629 

tern of public finance. On June 26 Lakanal presented a scheme 
for the primary education of both sexes, and on October 26 
a decree ior the establishment of schools on this plan was 
passed, but war internal and external and lack of means ren- 
dered it impracticable to carry the decree into effect. On 
August 1 the Convention adopted the metric system of mea- 
surements and weights. The Convention also in this time of 
strife within and without proceeded with the great work 
started by the Constituent Assembly of collecting into a single 
code the civil law of France. A committee of five was ap- 
pointed and allowed three months to make its report. It 
brought in its draft at the end of the first month, and discus- 
sion on it went on at sixty sessions. Here the substance of 
that great work, which bears the name of Napoleon, was 
given form. Its materials were taken from the ancient Ro- 
man civil law, and from the products of the labors of the 
Constituent Assembly and moulded to meet the views of the 
Convention. Influenced by the counter revolution at Lyons, 
Marseilles and elsewhere, and greatly exasperated by the 
treason at Toulon, by which it was surrendered with all its 
naval and military stores to the English, Paris was again in 
a violent ferment. A vote carried for the division of the 
revolutionary tribunal into four sections, in order to expedite 
its work, and the terrible motto "Let the reign of Terror be 
the order of the day," was seconded by a decree for an armed 
force to restrain counter revolutionists and protect supplies. 
On September 17 a law for the arrest of suspected persons 
was passed, which left the utmost latitude to the revolutionary 
committee entrusted with its execution. The only condition 
imposed was, that the names of persons arrested should be 
sent to the Committee of Public Safety. The killing of Marat 
by Charlotte Corday tended to inflame the radicals. On 
October 14 Marie Antoinette was condemned and executed. 
Then came the trial of the Girondist members of the Con- 
vention, whose arrest had been ordered on the third. Twenty- 
one of them, really innocent of any crime, but courageous 
men, who opposed the wild excesses of the rabble, were con- 
demned and executed. This however was not the light in 



6.30 EVOLUTION OF GOVERNMENTS AND LAWS 

which the matter was then viewed. The Girondists' uprisings 
throughout France were charged against them, and they were 
sacrificed. There was little attention to forms of procedure 
or evidence of guilt by the revolutionary tribunals, which now 
extended their work over France. Vigorous military oper- 
ations were carried on against counter revolutionists, and 
before the end of 1793 La Vendee, Lyons and Marseilles were 
overpowered and Toulon was recovered from the English. 
The bloody tribunal followed, wreaking vengeance on those 
singled out for punishment. Trials were summary and exe- 
cution quickly followed condemnation. Madame Roland, a 
most brilliant and pure minded leader oi the revolution, with 
many others of the best people of France, fell a victim to the 
fury of this bloody tribunal. Yet, while all this terrible work 
was going on within, France was triumphing over her enemies 
without, and along the eastern border the enemies were driven 
back. Though the reign of terror went on, after the end of 
the year 1793 the baneful power of the Paris Commune was 
checked by requiring the committees of the sections to report 
directly to the Committee of General Safety. The Committee 
of Public Welfare was placed above the ministers and vested 
with the general direction of the government. This divided 
into three groups of three each, exercising distinct functions, 
and being composed of men of great energy gave to the ad- 
ministration needed vigor, though it failed to protect the in- 
nocent. The year 1793 also brought to view the man who 
was to deluge Europe with blood and be the central figure in 
its history for many years to come, Napoleon. On June 10, 
1794, in order to expedite the work of executing prisoners, 
on motion of Robespierre it was provided that witnesses 
against the accused should not be required, if other means of 
proof existed. The pace of condemnation was greatly acceler- 
ated. In a little over a year prior to that time 1256 persons 
had been condemned. In six weeks thereafter 1361 suffered. 
Nowhere else has bloody retribution overtaken those guilty of 
bloody deeds with such promptness and certainty as during 
the Reign of Terror. On July 28, 1794, Robespierre, Saint 
Just and Couthon, who three days before had felt so secure in 



FRANCE 631 

the control of affairs as to call the other members of the com- 
mittee to account, were condemned and executed with nine- 
teen others, most of whom had taken part in their bloody 
work. The next day the seventy members of the general 
council of the Commune of Paris, many of whom were guilty 
of no offense, were guillotined en masse. The commune had 
clamored for blood, and its leaders and the Paris mob had 
often menaced the convention and its predecessors, the Con- 
stituent Assembly and the Legislative Assembly! Following 
the custom of the times there was in this instance no discrim- 
ination between innocent and guilty. After the suppression of 
the revolt in La Vendee there had been great slaughter by 
order of the revolutionary tribunal. Courier and others, who 
had directed it, were brought to trial and he and others exe- 
cuted. Some were acquitted. 

On Dec. 28, 1794, the Convention changed the mode of pro- 
cedure before the revolutionary tribunal so as to protect the 
rights of the accused and promote justice. The Jacobin club, 
which had done so much to promote the revolution and also 
the reign of terror, had been closed by order of the Conven- 
tion a few days before. The tremendous energy of the revo- 
lution was not manifested merely in bloody strife, but in an 
intellectual and physical activity never before exhibited. De- 
prived of its supplies of steel and saltpetre from foreign ports 
by war, new processes were invented, steel was made and the 
cellars of Paris were made to yield saltpetre for powder. A 
system of signals was devised by which communication was 
had almost instantly from one part of France to another. A 
central school of Public Works was established, which after- 
wards became known as the Polytechnic School, and a Normal 
School to teach teachers, together with other institutes for 
special education. On Dec. 26, 1794, a commission of twenty- 
one was appointed to examine into the conduct of ex-members 
of the Committees of Public Works and General Safety. On 
March 2, 1795, this committee reported an indictment against 
Billaud, Callot, Barere and Vadier, who constituted the ultra 
revolutionary faction of the committee. Their arrest was 
ordered by the Convention, and soon thereafter the excluded 



6.32 EVOLUTION OF GOVERNMENTS AND LAWS 

Girondists were recalled to seats in the Convention. Seventy- 
three representatives, held on suspicion, were restored to office, 
and on March 8, twenty-two Girondists, who had been out- 
lawed, were recalled. But the days of blood and arbitrary 
punishments were not over. Distrust still lurked everywhere. 
Billaud, Callot, Barere and Vadier, were ordered by the com- 
mittee to be transported at once without trial. Fouquier-Tin- 
ville the prosecutor who had prosecuted to their deaths so 
many illustrious men and women, Hermann the president of 
the court, and the judges and jurors who had condemned 
them, were themselves brought to trial, but not in that sum- 
mary manner to which they had resorted. Forty days were 
consumed in the trial. Fouquirer-Tinville, Hermann and 
fourteen others were condemned to death and guillotined on 
May 7, 1795. In the southeast, at Lyons, Marseilles, Toulon 
and elsewhere the reaction took a more violent form, and 
there was much slaughtering of those who were charged with 
participation in the reign of terror. After this there were 
bread riots, due mainly to the scarcity of provisions, and some 
summary executions, but the general sentiment was opposed 
to further bloodshed. A decree was passed abolishing the 
death penalty except as to the emigrants and for forgers of 
assignats, but civil commotion was not yet at an end. On 
May 16 a treaty of alliance was entered into with the States 
of Holland, and Belgium was annexed to France. On April 5 
peace was made with Prussia and on July 22, with Spain. 
Liberal principles had fought the battles of France as well as 
her armies and, despite internal troubles, France had come 
out of the struggle with the allied monarchs greatly increased 
in territory and power. England and Austria alone remained 
in active hostility, and but for the treason of Pichegru the 
Austrian army might have been crushed. 

On August 22 a new constitution was adopted by the Con- 
vention, subject to the peoples' approval. Frenchmen above 
the age of twenty-one, who paid a direct tax, or who had 
fought for the Republic through one campaign or would give 
three days' labor to the government, were made citizens. It 
contained a declaration not only of the rights but the moral 



FRANCE 633 

duties of man. Primary meetings were to choose one elector 
for every two hundred citizens. Electoral assemblies then 
elected the legislative body, tribunals and officers of the de- 
partments. The Legislature was divided into the Council of 
five hundred, who initiated all laws, and council of two hun- 
dred and fifty Ancients forty years old and upwards, who 
might veto proposed laws; one-third to be elected each year, 
and taken from each department in ratio of population. The 
executive power was placed in a Directory of five members, 
chosen by the Councils, one to be elected each year, under 
whom should be responsible ministers. Freedom of the press, 
of commerce and industry and the inviolability of the home 
were declared. All Frenchmen who had abandoned their 
country were forbidden to return, and their goods confiscated. 
It was estimated that more than 30,000 royalists had left 
France. Religious toleration was decreed, and no one was to 
be compelled to contribute to religious worship, nor was any 
payment to be made therefor by the government. On Sept. 
2 3> 1 79 5 , this constitution was ratified by a majority of 50,000. 
At the riots of Oct. 5, 1795, largely the work of royalists and 
reactionists, Napoleon came to the front as a leader of the 
forces of the Convention and dispersed the mob. On Oct. 
26, 1795, the Convention, which had for a little more than 
three years steered the ship of state amid mutiny through 
stormy seas, passed out of existence, and the new Legisla- 
ture came into power. 

The new directory chosen by the Legislature was La Reveil- 
lere-Lepeaux, Carnot, Rewbell, Barras and Letourneur. The 
issuing of assignats had gone on till they were almost worth- 
less. A new issue of three billions produced only twenty 
millions. Resort was had to the payment of taxes in kind, 
and in this manner wheat was obtained for the relief of Paris. 
Forty-five billions of assignats were issued, and besides the 
genuine the country was flooded with counterfeits. The fall- 
ing values of assignats, given forced currency, and the insta- 
bility of all values gave great opportunities to the speculators, 
resulting as usual in corresponding suffering among the poor. 
A striking illustration of the reduced pace at which state trials 



634 EVOLUTION OF GOVERNMENTS AND LAWS 

went forward was in that o,f Babeuf, who had instigated an 
uprising and advocated community of property, which began 
February 20, 1797, lasted three months and resulted in his 
sentence to death with one other person. Seven others were 
sentenced to transportation and the rest acquitted. The reign 
of terror had passed away, in 1796 the civil war in the Vendee 
came to an end, and Bonaparte led the army in Italy. Much 
blood had been shed by order of the revolutionary convention, 
but the numbers who had suffered were altogether insignifi- 
cant as compared with those who fell in the bloody wars waged 
by Napoleon. Members of the Convention gave up their lives 
as sacrifices to the good of France, but for each one of these 
many thousands fell in battle. The civilized world has never 
ceased to condemn the excesses of the revolution, but it still 
applauds the wholly indefensible butcheries of war. Much of 
the bloody work of the reign of terror resulted from too in- 
tense devotion to the cause of liberty. Distrust followed the 
overthrow of the monarchy, which had ripened and rotted 
through so many centuries. If moderation of language could 
have been maintained, much crime would have been avoided. 
Intemperate demands for the blood of opponents and counter 
threats caused blood to flow when popular tumults occurred. 
Never was there a time when intemperate words led to bloody 
deeds so quickly and frequently. But the heroic work of those 
who braved death at the guillotine gave an impulse to govern- 
mental reform which can hardly be measured. The peculiar 
sadness of these executions is augmented by the nobility of 
soul displayed by so many of the victims. The Girondists and 
Madame Roland gained a pure fame, which will grow in lustre 
as true liberty spreads its light over the world. Even Danton, 
Robespierre and Saint Just were sincere republicans. The 
great lesson of the reign of terror is, that in times of great 
excitement intemperate language is as dangerous as sparks in 
a powder house, and that those who unjustly take the lives 
of others may expect that retributive justice will soon return 
upon their necks the unmerited strokes which have destroyed 
others. Compared with blood spilled in the many causeless 
wars waged by the kings to gratify their mere personal pride 



FRANCE 635 

or ambition, all the blood spilled by the revolutionary tribunals 
was as a drop in a great tub full. But the blood of the revolu- 
tion was to water a plant of incalculable value to mankind, 
while that spilled at the command of the kings was not only 
to no good purpose, but passed a legacy of oppression and 
hatred down from generation to generation. Europe and 
America claim to believe and follow the teachings of Christ, 
yet the savage Mars, the war God of ancient Greece and Rome, 
still holds sway. Kings and states still send their men forth 
to do wholesale murder to gratify the pride and ambition of 
kings and rulers, and when great battles are fought and many 
thousands meet death, and many more thousands live in the 
agony of mutilation, the multitude applauds and the fierce 
leaders become worshipped as heroes. France achieved her 
true and great glory through her three great assemblies and 
during the time of her bloody travail. Napoleon led her 
back into the old train of Mars and watered the fields of 
Europe with innocent blood. For this rulers of England and 
Austria especially must share the blame, and of Prussia, Spain 
and Russia also a part. Napoleon sought, not liberty or the 
happiness of the people of France, but that false phantom, 
glory, which leads so many to the grave over a path smoking 
with pestilential fumes of war and reeking with the corrup- 
tion and miseries it engenders. Europe has neither accepted 
the rich fruits of the deliberations of the patriots of that 
memorable period, nor ceased to worship Mars, Woden and 
Thor. These are still the gods of the palaces and many of 
the homes of the most advanced nations of Europe, in fact 
though not in name. The time of intense activity of the pure 
republican sentiment ended with the Convention. The new 
legislative chambers were largely reactionary. With the ex- 
ception of Carnot, that most able and worthy patriot, the 
Directory was made up of poor or bad material. Napoleon 
was already plotting to gain arbitrary power, though pro- 
fessing the most profound devotion to republican principles. 
He sent his emissaries to Paris to further his ends. The 
army was rapidly becoming the ruling force of the state. 
The clubs, which had wielded such vast influence, had lost 



636 EVOLUTION OF GOVERNMENTS AND LAWS 

their hold on the people, and the most powerful ones had 
been closed and dispersed. The treason of Pichegru, which 
had come to light, was made a pretext by Barras, La Reveil- 
lere and Rewbell for a coup d'etat. On Aug. 18, 1797, the 
Directory addressed a message to the Five Hundred, calling 
attention to plots and violations of the constitution. It was 
referred to a special committee to direct prosecutions against 
all plotters against the constitution and soldiers holding politi- 
cal councils. On the night of September 3 the Tuileries 
was surrounded by 12,000 soldiers with forty cannon. The 
assembly was prevented from holding a session the next day, 
and Barthelemi, one of the Directory opposed to the coup, 
was arrested, while Carnot escaped and fled to Switzerland. 
Thirty members of the Council of Ancients attempted to hold 
a session at the house of their president and were arrested 
and imprisoned in the Temple. Eighty-five of the Five Hun- 
dred, holding a session near by, were dispersed and many of 
them arrested. A session of those members of the councils 
favorable to the three Directors, the Triumvirs, was then held. 
A resolution in thirty-nine articles was voted, annulling the 
elections in fifty-one departments as being ifalsified by royalist 
emissaries, thus destroying the opposing majority. The po- 
litical rights which had been restored to the relations of emi- 
grants were taken from them. Forty-two members of the 
Five Hundred and eleven of the Ancients were ordered to be 
transported with Carnot, Barthelemi and other prominent 
men, including Pichegru. The law recalling transported 
priests was repealed and all newspapers were placed under 
police inspection. The law against clubs was repealed, though 
they were forbidden to attack the constitution. These reso- 
lutions were first passed by the Five Hundred and then by the 
Ancients on September 6. The directory was filled by 
adding Merlin and Frangois. On October 17 Napoleon 
concluded a treaty of peace with Austria, contrary to the in- 
structions of the Directory, but which they ratified. This 
left England as the only country with which war still con- 
tinued. The Directory made Napoleon commander-in-chief 
of the army of England, and he came to Paris, where he 



FRANCE 637 

affected modesty and was accorded great distinction. His 
next project was the invasion of Egypt. 

When the elections of 1798 were held, the Directory again 
interposed to maintain their ascendency in the Councils and 
annulled such o;f the elections as they deemed most unfavora- 
ble. Treilhord succeeded Frangois on the Directory. While 
Napoleon was prosecuting his war in Egypt, public senti- 
ment in France grew hostile to the Directory, and the elections 
of 1799 were carried by the reactionists. Sieyes succeeded 
Rewbell in the Directory. The newly elected one-third of the 
Councils infused life and independence into them. Liberty 
of the press and of assemblage and free elections were order- 
ed. Conscriptions were ordered and a forced loan of one 
hundred millions from the well-to-do classes. War was re- 
newed and went on in Italy, Switzerland and the low coun- 
tries against the forces of Austria, England and Russia, as 
well as in Egypt, with varying success. Napoleon left his 
army in Egypt and arrived in Paris Oct. 25, 1799, where he 
at once commenced to plot to overthrow the Directory and 
assume dictatorial power, backed by his military followers. 
The pretext of a Jacobin plot was invented. A decree of the 
Council of Ancients removing the session to St. Cloud was 
obtained, and Bonaparte was commissioned to command the 
military forces and execute the decree. The Council of Five 
Hundred met four hours later and were disinclined to go to 
St. Cloud, but Lucien Bonaparte, the president, ruled that the 
matter could not be discussed till next day. Three of the 
Directory resigned. Gohier and Moulin, the remaining di- 
rectors, who remained steadfast in support of the constitution, 
were kept confined in the directoral residence in Luxembourg 
by troops under Moreau, who followed Napoleon. The lead- 
ers of the Councils met at night with Napoleon and Sieyes, 
when Nopoleon declared that the constitution must be changed 
and a temporary dictatorship established. There was also a 
meeting of representatives opposed to his schemes to devise 
means of resistance. Nov. 10, 1799, the two councils met at 
St. Cloud. A letter irom the secretary general of the Direc- 
tory was read announcing the resignation of if our directors, 



638 EVOLUTION OF GOVERNMENTS AND LAWS 

though neither Gohier or Moulins had resigned. Napoleon 
appeared in the Council of the Ancients and made a speech, 
in which he talked of liberty and equality, while he demanded 
the dictatorship. He then went to the Five Hundred and en- 
tered, escorted by some of the legislative guard. Being met by 
protests at the appearance of swords and bayonets in the 
Council, he was taken from the hall by General Lefevre and 
the soldiers. Then Lucien Bonaparte went out and addressed 
the troops as president of the Council in the interest of his 
brother, after which Murat led in the genadiers, who drove 
the representatives from the hall. At nine that night Lucien 
assembled thirty of the members of the Five Hundred, who 
assumed to be a quorum and approved the course taken by 
Napoleon and the troops. Three consuls were nominated, 
Napoleon, Sieyes and Roger-Ducos. All swore to support the 
republic. Two commissions to assist the consuls in changing 
the constitution were chosen, and the exclusion of fifty-seven 
of the representatives and an adjournment of the Councils 
for three months was ordered. This order was ratified by the 
Ancients. The new consuls professed devotion to the republic 
and to liberty. Napoleon was popularly looked on as a Wash- 
ington, but at best he was one of the coldest of military des- 
pots. The adoration of the multitude was mainly based on 
the ancient worship of the war god, as whose representative 
Napoleon was acknowledged and glorified. The decree which 
formed the provisional consulate invested them with full 
power and charged them to restore order and peace. Two 
commissions of twenty-five members each took the place of 
the Councils, and their powers were to continue three Months 
till the Councils should meet again. Napoleon's great strength 
lay in his judgment of the capacities of men and in his ability 
to have them carry out his will. He at once selected as his 
principal ministers three men of great executive ability. Tal- 
leyrand for foreign affairs, Berthier for war and Gaudin for 
finance. Many political prisoners were released, but the sale 
of the goods of the emigrants was confirmed. On November 
1 6 a harsh measure was adopted, by which thirty-seven citi- 
zens were arbitrarily transported and twenty imprisoned on 



FRANCE 639 

the Isle de Ri. Some were guilty of bloody crimes, but others 
only of having opposed Napoleon's usurpation of power. On 
Dec. 15, 1799, the new constitution, mainly the work of Sieyes, 
was made public. It placed the executive power in three con- 
suls, to hold for ten years, and eligible to reelection. Of these 
the first alone could promulgate laws, appoint ministers, am- 
bassadors, and officers generally. The second and third con- 
suls could consult with, but not control the action of, the first. 
500,000 electors chosen by universal suffrage elected 50,000 
persons, who in turn chose 5,000 names from which a senate 
made up of eighty life members chose the consuls, tribunes 
and legislature. The legislative body was composed of three 
hundred members. A council of state was charged with draft- 
ing laws, its members to be named by the first consul. The 
laws thus formed were to be presented to a tribunate of one 
hundred members, which after discussion was to pass them on 
in the hands of three orators, who should discuss them against 
three councillors of state, nominated by the consuls, in the 
presence of the legislature, which should then adopt or reject 
the proposed laws by secret ballot without debate. Vacancies 
in the senate were filled by the senate from a list of three 
candidates ifor each vacancy furnished one each by the legis- 
lature, the tribunate and first consul. The senate had power 
to veto any law or governmental act it deemed unconstitu- 
tional. Municipal officers were to be taken from the first list 
of 500,000 electors, departmental from the second of 50,000 
and national from the third. There was no declaration of 
the rights of man and no guaranty of liberty of the press. 
Personal liberty only was assured. The new constitution was 
adopted by a large, almost unanimous, vote. Napoleon, Cam- 
baceres and Lebrun were chosen consuls. The legislative ses- 
sion of the new government was opened Jan. 3, 1800. A law 
was passed abolishing the cantonal municipalities and substi- 
tuting larger units called arrondissements. Officers were ap- 
pointed by the government instead of chosen by the people. 
Over the departments prefects were appointed and subprefects 
over the arrondissements, and the commune had a mayor 
named by the prefect. Corresponding changes were made in 



640 EVOLUTION OF GOVERNMENTS AND LAWS 

the judicial system, and jurors were named by the prefects. 
All judicial officers except justices of the peace were appoint- 
ed. Under this system France was again ruled by one head. 
On Feb. 9, 1801, peace was made with Austria. July 16, 1801 
a concordat with the Pope reestablished the Catholic as the 
religion of state in France, and on March 25, 1802, a treaty of 
peace was concluded with England. . The emigrants, of whom 
there were said to have been 145,000, were allowed to return 
and restored to such of their property as had not been sold. 
The educational scheme of the Convention was replaced by 
another, which failed to give general primary education, but 
did provide military schools. By vote of the people Napo- 
leon's term of office was extended for the term of his life. 
La Fayette, who after long confinement in Austrian prisons 
had finally returned to France, voted no, but very few others 
had the courage to do so. There was a brief period of peace 
and prosperity, which unfortunately soon came to an end 
through the fault of bad rulers in France and England. In 
1803 that long and fearful war commenced, which was to 
cause such frightful sufferings and loss of life. The year 1804 
witnessed the completion of the Code, which bears the name of 
Napoleon, and for which he claimed the credit, but it was of 
course mainly the work of lawyers, and most of the material 
far it had been prepared by the Convention. (A summary of 
the provisions of this Code with its modifications contained in 
the Civil Code of France will be found in the Appendix.) 
This great work became a model followed by neighboring 
states in the codification of their laws, and presents system- 
atically arranged and concisely stated the civil law of France. 
On May 18, 1804, Napoleon, having obtained the sanction of 
the Senate, was proclaimed Emperor with succession in his 
heirs, a civil list of 25,000,000 and the use of the royal palaces 
and estates. With the advent of Napoleon to power the in- 
ternal struggles of parties, clubs and factions soon came to an 
end. He introduced order and system and carried on useful 
public works. In the collection of the revenue there was thor- 
oughness and in its expenditure economy. Restored order and 
prosperity were placed to his credit and gladly accepted. But 



FRANCE 641 

this gain was at the expense of a military despotism, in which 
the blood and treasure, the peace and happiness of a great na- 
tion weighed as nothing against the ambition and the criminal 
folly of a single heartless despot. Thenceforth the young men 
of France were called from their homes to be sacrificed to the 
fierce war god, whose high priest was Napoleon. Despotism 
in France and despotism in England, Austria, Prussia, Spain 
and Russia must be charged with the lives of the millions who 
were slain in the long struggle, which deluged Europe with 
blood till Napoleon's fall at Waterloo. 

With these long and fearful wars and the bloody battles 
which gave Napoleon such renown as a military commander 
we have nothing to do, save to call attention to the frightful 
suffering they caused and the needlessness of them all. Never 
was there a more wanton crime committed against a people 
who had confided their destines to a ruler than that of Na- 
poleon in leading a French army into Russia in 18 12 to perish 
without a cause. The hundreds of thousands of lives, sacri- 
ficed in battle or to the rigors of a severe northern winter, were 
offerings to the war god and chargeable to Napoleon. From 
this time on disasters multiplied, and by the winter of 18 14 
France was literally drained of young men capable of mili- 
tary service, and the vast accumulation of arms and military 
stores, which had been provided with so much care, was in the 
hands of the enemy in Italy and Germany. Never in all the 
history of France was there a stronger illustration of the 
folly of entrusting the power to make war to a single man. 
Never did a despot live who cared less for human life or 
human happiness than Napoleon. His mad desire for military 
glory and conquest dominated every act and doomed to an 
untimely death most of a generation of brave men. So long 
as the young are taught to admire and emulate the conduct of 
such human monsters, and to look on war as the avenue 
through which fame and glory must be sought, so long will 
humanity suffer the horrors and miseries of needless wars. 
When murdering by wholesale shall be viewed in its true light, 
as private murder now is, and when the duels of nations shall 
be weighed as private duels are, the world may breathe a 



642 EVOLUTION OF GOVERNMENTS AND LAWS 

purer air and the worship of Mars give way to the spirit of 
genuine Christianity. 

Exhausted France could oppose no effectual resistance to 
the allied powers, who, profiting by the lesson so often taught 
by Napoleon that time is of prime importance in military 
movements, pushed steadily forward without allowing time 
to Napoleon to concentrate the scattered remnants of his 
forces or to organize and equip the few new recruits France 
yet could furnish. On March 31, 18 14, the allies entered 
Paris. They demanded the overthrow of Napoleon. On 
April 2nd the remnant of the Senate decreed the deposition of 
Napoleon and his family ; on the next day the legislative body 
confirmed the decree, and on the 6th Napoleon abdicated. The 
allies allowed him to retain the title of Emperor with the 
island of Elba as his empire, and his wife Marie Louise of 
Austria was given the duchy of Parma. Ample pensions were 
allowed to him and the members of his family. A new con- 
stitution was formed, afterward modified, and Louis XVIII 
was made king. The executive power and the initiative of all 
laws was conferred on the king. The peerage was restored, 
a house of lords taking the place of the Senate, with unlimited 
power of appointment in the king. The legislative power was 
confided to the King, Senate and Chamber of Deputies. The 
Constitution sanctioned individual liberty, freedom of wor- 
ship and of the press, confirmed the sale of national property, 
the public debt, and accorded amnesty for acts committed dur- 
ing the revolution. The senate was to be composed of not 
less than one hundred and fifty nor more than two hundred 
members, chosen by the King, but one hundred of the senators 
then in office were to be continued. The Catholic was retained 
as the religion of state. The right of suffrage was greatly 
restricted. Electors were required to be thirty years old and 
pay an indirect tax of three hundred francs. Deputies ivere 
to be elected for five years and one-fifth renewed each year. 
The right to make war and peace was vested in the king, with 
that of making all arrangements necessary for the execution 
of the laws and the safety of the state. A responsible minis- 
try was established. Conscriptions were to be regulated by 



FRANCE 643 

law. The Constitution was dated from the nineteenth year of 
the reign of Louis XVIII, as if the republic and empire had 
never existed, and was called the Constitutional Charter, as if 
granted by grace of the king. The Charter was proclaimed 
June 4, and eighty-three senators and forty dukes from the 
nobility of the old regime were made members of the new 
house of peers. The rule of the Bourbons, which again placed 
in authority those who had so long been the enemies of 
France, though at first accepted with hope, because of the in- 
tense longing of the people for peace and security, soon pro- 
duced irritation everywhere. The King and his followers were 
wanting both in moral purposes and in business capacity. The 
treaty of Paris, which diminished the territory of France, was 
a source of national humiliation. Discontent grew, and Na- 
poleon, learning the situation, set sail on Feb. 26, 181 5, with 
about 1,100 soldiers and landed near Cannes on March 1. 
He was received everywhere with enthusiasm, the soldiers 
sent to oppose him deserting the Bourbons and joining his 
little army. On March 19 he reached Fontainbleau, and the 
Bourbons fled. On the 20th he entered Paris and took pos- 
session of the Tuileries. Again the Constitution was changed, 
Napoleon seeking the aid of the republican sentiment. It was 
in main the Charter of Louis XVIII, the principal change be- 
ing in the lower house, which was called House of Represen- 
tatives, and in the mode of election. Primary meetings were 
to nominate for universal suffrage 100,000 electors for life, 
forming two classes, one of the departments and the other 
of the districts, each of which were to elect representatives at 
least thirty years of age. The peerage was declared heredi- 
tary. This constitution, called the supplementary act, was 
ratified by the people. The two chambers met on June 3 and 
Napoleon set out on June 20 to be defeated at Waterloo. 
The representatives of the people again had to face the situa- 
tion of submission to foreign powers. In the Chamber of 
Representatives Lucien Bonaparte strove to maintain Napol- 
eon in power. To his appeal La Fayette answered : "Prince, 
you slander the nation. It is not for forsaking Napoleon that 
history will blame France, but ifor following him so long. 



644 EVOLUTION OF GOVERNMENTS AND LAWS 

She followed him in the Egyptian sands and the Russian des- 
erts, on fifty fields of battle, in reverses as in his triumphs. 
Fidelity too long continued has cost France three million 
men!" The net result of all this enormous sacrifice was, that 
exhausted France lay at the mercy of its many foes, some or 
all of whom might have been friends if Napoleon had striven 
for peace with half the zeal he prosecuted war. Napoleon 
again abdicated, proclaiming his son emperor. On July 4 the 
representatives signed the capitulation, turning the destinies 
of France over to the allies, but on the same day a declaration 
of rights was presented to the House which was adopted on 
the next. On July 7 Prussians and English took possession of 
Paris and Louis XVIII entered it the next day. The inunda- 
tion of foreign soldiers, who pillaged and preyed on France, 
was overwhelming, amounting to as high as 1,240,000 men. 
The French army was disbanded and disorder, pillaging, mur- 
der and excesses of all sorts prevailed over the country. On 
July 15 Napoleon surrendered to the English and went to 
Plymouth, expecting to be allowed to live in retirement, but 
he was sent Aug. 8 to St. Helena as a captive. The elections 
in 181 5 were carried by the royalists, and a law was passed 
creating special courts for the trial of political offenders. The 
peerage was reconstructed by the addition of one hundred 
and ninety-four peers, declared hereditary. Louis reigned 
as a constitutional monarch in comparative peace. In 18 19 
the electoral laws were revised so as to require the election of 
all the deputies once in seven years, instead of a portion each 
year, and increasing the number. The policy of a protective 
tariff on foreign goods was adopted, and with peace and in- 
dustry France advanced in prosperity. The many-sided civ- 
ilization, contributed to by the millions of people, moved 
forward. Political parties developed, but there were no great 
outbreaks causing bloodshed. Louis XVIII passed away on 
Sept. 16, 1824, and Charles X took his place. The rule of 
Louis XVIII was not that of a Bourbon despot, but of a 
constitutional monarch, governed in great measure by the 
principles developed by the revolution. Charles observed the 
restrictions on his power imposed by the charter in the main 



FRANCE 645 

until 1829, when he named a very obnoxious ministry. On 
July 25 four ordinances were signed by the king and counter- 
signed by the ministers, the first suspended the freedom of the 
press, the second dissolved the Chamber of Deputies, the 
third reduced the number of deputies and altered the electoral 
law, and the fourth convened the new electoral college on 
Sept. 6 and 13. When these arbitrary acts became known 
Paris was again in a ferment. On July 28 the streets were 
barricaded, the tocsin was sounded and all Paris rose to resist 
the king's usurpation of authority. There was fighting in the 
streets between the troops and the citizens, but many of the 
soldiers were disposed to side with the people. Though 5300 
persons were killed or wounded in the fight, there were no 
exhibitions of such barbarity and bloodthirstiness as in the 
revolution of 1789. The people realized that the soldiers 
fought ifrom a sense of duty, and the soldiers really felt in 
sympathy with the people. On the 29th two regiments went 
over and joined them. The king was without efficient support 
and left the city. La Fayette, that grand character, who had 
taken part in the stormy scenes of the American Revolution 
and of 1789, again came to the front in command of the 
national guard of France. The King abdicated and left 
France on Aug. 3, 1830. On the same day the Legislature 
convened, two hundred and forty deputies and sixty peers be- 
ing present. The Constitution was again changed, the Cath- 
olic religion ceased to be recognized as the religion of state, 
censorship of the press was abolished and its inviolability es- 
tablished, commissions and extraordinary courts for the trial 
of offenders were prohibited, the tricolored standard was 
resumed, the age of deputies was fixed at thirty to serve five 
years, hereditary peerage and all peerages created by Charles 
X were abolished. The throne was declared vacant and the 
Duke of Orleans was chosen king, on condition of acceptance 
of the amended Charter. Though there was much republican 
sentiment, many ardent republicans like La Fayette deemed it 
wisest to choose a king. Louis Philippe came to the throne 
as a citizen king. The difference between his case and that 
of ancient monarchs was expressed by M. Thiers, who took 



646 EVOLUTION OF GOVERNMENTS AND LAWS 

part in this revolution, in the words, "The king reigns, he does 
not govern." Louis Philippe was not content however to 
merely reign, he sought also to govern. On June 5, 1832, there 
was an outbreak in Paris which assumed considerable propor- 
tions and seemed formidable, but on the next day it was sup- 
pressed. Many of those implicated were arrested and tried. 
Some were sentenced and others acquitted, but there were no 
executions, thus showing a marked advance from the bloody 
days. Though Louis Philippe was charged with weakness in 
his foreign policy, he avoided disastrous foreign wars, and 
France prospered in peace. His reign witnessed the introduc- 
tion of the railroad and telegraph and marked advance in 
manufactures and commerce. Though there were many at- 
tempts to take the King's life, he always exhibited courage 
when attacked and clemency toward those implicated. Noth- 
ing more surely proves the advancing moral tone of the people 
than the improved administration of justice. Trials no longer 
meant mere formal procedure preliminary to bloody execu- 
tions, but there was a decided leaning toward clemency, and 
even those guilty of political offenses were sometimes acquit- 
ted. The King no longer used the courts as tools for the exe- 
cution of his arbitrary will. The public were becoming ac- 
customed to submit to law and reject claims to arbitrary power. 
On Feb. 24, 1848, as a result of an order prohibiting the 
holding of a banquet, all Paris rose against Philippe, who in 
the morning believed himself secure, yet abdicated at noon in 
favor of his grandson. Barricades were thrown up all over 
the city. The national guard, when summoned, sided with 
the people, and the regular troops, though numerous, were 
not able to contend with the mob. Public sentiment was so 
strong against the king and his ministers that a revolution 
was effected with very little bloodshed. A provisional govern- 
ment was formed by naming a new ministry, the Chambers 
were dissolved and an election ordered to choose a new Na- 
tional Assembly. The ministry were confronted with con- 
ditions urgently demanding relief. Great numbers of laborers 
were unemployed and in want. They looked to the state to 
afford them relief. On February 25 a workman rushed into 



FRANCE 647 

the council chamber with a petition crying for, "the right to 
labor in an hour." "Such is the will of the people." This was 
not a very disorderly demand, though difficult to comply with 
on a large scale under such circumstances. The election for 
members of the National Assembly was finally fixed for April 
23, and nine hundred representatives were to be chosen by 
departments and to receive twenty-five francs per day. All 
titles of nobility were abolished. The political discussions 
preceding the election disclosed a great diversity of ideas and 
schemes for the betterment of social conditions. The relations 
of labor and capital and the fundamental questions concerning 
rights of property were much discussed, and socialists and 
anarchists advanced their theories. The ministry established 
banks of discount and public warehouses and resorted again 
to paper money. Great numbers of laborers were employed 
on public works, the list including by the end of April nearly 
100,000. On April 27, 1848, the government proclaimed the 
abolition of slavery, including the colony of Algiers. The 
elections passed off peaceably with a few exceptions, the new 
National Assembly convened on May 4 and on the 8th ap- 
proved the conduct of the provisional government. On June 
23 rioting commenced in Paris and barricades were erected. 
No very well defined purpose animated the rioters, but they 
were led by agitators who opposed the measures of the As- 
sembly, and a great number of needy laboring men followed 
them. Serious conflicts ensued, continuing through the 24th 
and 25th, when the rioters were finally overcome by the 
troops. More than 1500 persons were killed and 2500 
wounded in this conflict, which was wholly wanting in good 
results, and was followed by the arrest, imprisonment and 
trial of a great number of persons who took part in it. It 
is encouraging to note that the days of summary and bloody 
punishments were over, some were transported and some im- 
prisoned after trial, but none were executed. On Nov. 4, 
1848, the Assembly completed its work in the adoption of a 
new Constitution, which was read to the people in the Place 
de la Concorde on November 12. It provided for a President 
to be elected for four years by the people and ineligible to re- 



648 EVOLUTION OF GOVERNMENTS AND LAWS 

election till after ifour years more. The Assembly of 750 
members was to sit in a single body with power to choose a 
council of state to hold for a term of six years, and to draft 
all laws. Magistrates were to be named by the executive 
power, mayors by the town councils, and justices of the peace 
elected by the people. Among the clauses of the Constitution 
exhibiting an advanced appreciation of the obligations of the 
state to its weaker members and to the outer world were the 
following : "The French Republic respects foreign nationali- 
ties ... it will never employ its powers against the liberty 
of any people." "The republic should by fraternal assistance 
insure the support of its needy citizens either by procuring 
them work to the extent oif its means or by giving the means 
of existence to those who are unable to work and have no 
family." The duty of the state to furnish education was 
recognized. 

The election was fixed for Dec. 10, 1848, and resulted in 
the choice of Louis Napoleon Bonaparte as President. On 
December 20 he took the oath of office, professing devotion to 
the cause of liberty and the principles of the republic. The 
Constituent Assembly held its last session on May 27, 1849, an d 
the new Legislative Assembly opened on the next day. Louis 
Napoleon began his career as President by overturning the lit- 
tle Republic of Rome, which had driven out the Pope, and re- 
storing him to his temporal possessions, in violation of the 
Constitution. On March 15, 1850, the Assembly passed an 
educational law which gave to the Catholic clergy the principal 
supervision of primary schools. The election law was chang- 
ed so as to require a three years' residence to qualify a voter. 
This disfranchised a large portion of the laborers. On Dec. 
2, 1 85 1, Napoleon, having gathered about himself and placed 
over the army men on whom he could rely, caused the arrest of 
sixteen of the most prominent members of the Assembly, 
without any lawful pretext, and issued a decree and three 
proclamations. The decree dissolved the Assembly and re- 
stored universal suffrage. Paris was declared in a state of 
siege. One proclamation accused the Assembly of plots and 
appealed to the people to adopt a new form of constitution, 



FRANCE 649 

the leading points of which were : First, A President chosen 
for ten years; second, Ministers responsible to the President; 
third, A council of state to prepare laws and discuss them be- 
fore the legislative body ; fourth, A legislative body elected by 
universal suffrage to discuss and pass laws ; fifth, A Senate to 
guard the Constitution and public liberty. To the army a 
flattering proclamation was issued, demanding passive obedi- 
ence to orders and assuming full responsibility to the people 
for all his measures. The third proclamation was by the 
prefect of police warning all that attempts at revolt would be 
severely repressed. The Assembly was forcibly prevented 
from again convening. Though the Constitution gave the 
supreme court power to call a grand jury to try the president 
in case of high treason, no action w r as taken because of "the 
material obstacles to the execution of any decree that might 
be issued." Attempts at resistance to Napoleon's usurpation 
of power were made at Paris and throughout the provinces, 
but they were mercilessly crushed. In Paris some barricades 
were erected, but the people were not able to hold them against 
the army, and those offering resistance were mercilessly slaugh- 
tered. As the resistance was overcome great numbers of 
arrests were made, and while the guillotine was not again set 
actively at work, there were many arbitrary orders of trans- 
portation and imprisonment without any observance of legal 
forms. Hostility to the usurper was an offense punished by 
his emissaries at discretion. The election held on December 20 
and 21 resulted in an overwhelming endorsement of the usur- 
pation. On Jan. 14, 1852, Napoleon promulgated a new Con- 
stitution. It began with a "recognition, confirmation and 
guarantee of the principles proclaimed in 1789," but "The gov- 
ernment of the French Republic is intrusted to Prince Louis 
Napoleon Bonaparte for the term of ten years," who was made 
responsible to the French people. The president was given 
command of the army and navy, power to declare war, make 
treaties and alliances, fill offices and make rules and regulations 
for the execution of the laws. Justice should be executed in his 
name and he alone could issue, sanction and promulgate laws. 
All public functionaries must swear allegiance to him. "The 



6so EVOLUTION OF GOVERNMENTS AND LAWS 

wheel within the wheel of the new organization will be a state 
council of from forty to fifty members, chosen and revocable 
by the president of the republic, discussing the laws in private 
session, then presenting them for the approval of the Legis- 
lature." The Legislature was to consist oi 262 members, 
chosen for five years by universal suffrage, to vote on laws 
and taxes. The Senate was composed of eighty members, 
liable to be increased to one hundred and fifty, chosen by 
the president, except that cardinals, marshals and admirals 
were senators virtute officii. The president might give sena- 
tors an income of 30,000 francs. The senate was to oppose 
the promulgation of laws contrary to the Constitution, to mor- 
ality, religion, etc. All mayors were chosen by the executive. 
There was no guaranty of liberty of the press or security of 
the person against arbitrary arrest. The new constitution 
created a despotism based on a written constitution and uni- 
versal suffrage. The new government closed many of the 
schools and changed the faculty of the university and the 
course of study. On the other hand its energies were devoted 
to the development of industrial enterprises and commerce. 
Railroad companies were organized and roads constructed. 
Banking institutions were organized and the Bank of France 
grew in importance. November 20 and 21 the people restored 
the Empire with Napoleon as hereditary ruler under the title 
of Napoleon III by a nearly unanimous vote. March 27, 1854, 
the war with Russia broke out with the somewhat novel com- 
bination of Turkey, France and England as allies against Rus- 
sia, while Austria armed but remained neutral. This strange 
combination prosecuted a war which cost France the lives of 
95,000 men, besides those who lingered on, suffering from the 
effects of wounds, exposure and disease, and from which 
France gained nothing. 

On May 3, 1859, the emperor announced to the Chambers 
that Austrian troops had invaded Piedmont and proclaimed 
that Austria must rule to the Alps or Italy be free to the 
Adriatic. A brief campaign resulted in overwhelming defeats 
for the Austrians, followed by a peace quickly concluded 
by Napoleon, by which Piedmont gained Lombardy at the 



FRANCE 651 

expense of the cession of Nice and Savoy to France. This 
war, although bloody while it lasted, ended July 8. It gave 
Napoleon prestige, restored to France a part of its natural 
territory and imparted an impulse to the idea of Italian na- 
tionality and unity, which soon resulted in the union of the 
whole peninsula under the Sardinian king and the expulsion 
Oif the Austrians. Operations in China and Algeria were also 
productive of the extension of French power, but the attempt 
to place Maximilian on the throne of Mexico during the 
civil war in the United States, cost that unhappy prince his 
life, along with that of many thousand others, and brought 
disgrace on the empire. Neither of these wars was long or 
very exhausting to France. On the other hand the peaceful 
activities of the country were stimulated under the reign of 
Napoleon as they had never been before. A liberal trade 
policy, by which many ancient restrictions were abolished and 
trade with foreign countries encouraged, together with the 
development of shipping interests and improved means of 
internal communication by railroads, canals, and wagon roads, 
resulted in rapid development of manufactures and domestic 
and iforeign commerce. Though the rule of Napoleon III was 
a despotism, it was a despotism based on the popular will and 
with energies directed toward the material development of 
France. In adapting such a government to the tastes and 
prejudices of the French people Napoleon III manifested great 
tact, and on the whole his system was not altogether unsuited 
to the conditions then existing. But the inevitable attendants 
of despotisms are corruption and injustice. Arbitrary power 
is never effectually held within the even course of justice 
merely by a sense of right. The unrestrained power to act 
on impulse, without external restraint, inevitably results in 
departure from right conduct. There is also a strong tendency 
for the official instruments, through whom the despot exe- 
cutes his will, to adopt systems and methods of administration 
which are essentially and inherently bad in their effects on 
the general public, but agreeable and profitable to the inter- 
ested supporter of the throne. Whether a realization of the 
growth of such conditions influenced him, or other motives, 



652 EVOLUTION OF GOVERNMENTS AND LAWS 

in i860 he granted to the Legislature publicity of debate, free- 
dom of speech and some measure of control over the expendi- 
tures of public moneys. Legislation for the betterment of the 
conditions of laboring men was also attempted. While look- 
ing to the people through universal suffrage for his support 
and authority, he really took some interest in the welfare of 
the great multitude. In 1869 ne proposed still more sweeping 
reforms, by creating a ministry responsible to the Senate as 
well as to the Emperor, and otherwise materially extending 
the power of the Legislative Chambers. In accordance with 
his prior policy his new constitutional measures were submit- 
ted to the people and approved by an immense majority on 
May 8, 1870, 7,300,000 voting for to 1,500,000 against. The 
particulars of the changes thus effected in the framework of 
the government were rendered unimportant by ^following 
events. The greatly increased power of the Prussian mon- 
archy, elevated to the leadership of Germany after military 
successes over Austria, caused intense popular jealousy in 
France. Napoleon, relying on the reports of his ministers as 
to the condition of the army and its equipments, rashly and 
rudely provoked war with Germany, without any real ground 
for a quarrel. War was formally declared on July 19, 1870, 
but here the weakness of his despotism became evident to 
Napoleon and to the world. The effects of corruption and in- 
efficiency were apparent in all departments of the military 
service. Instead of a state of readiness for immediate action, 
it was found that the army was in no condition to move. 
Arms, wagons, ammunition and equipments of all kinds were 
so stored and distributed as to be unavailable ifor immediate 
service. On the other side Germany was ready, and by Sep- 
tember 2, a month after the opening of the campaign, Napo- 
leon and his army were prisoners of war as the result of the 
fatal battle of Sedan. On Sunday September 4 the Legisla- 
ture met, declared the Imperial Government at an end and 
proclaimed the Republic. A provisional government with 
General Trochu as President was formed. Though this gov- 
ernment struggled desperately to rally the forces of France 
and resist the invading host, no sufficient amount of energy or 



FRANCE 653 

effort could be exerted to counterbalance the superior prepa- 
rations of the Germans. On January 28, after enduring the 
horrors of a siege with its vast population, Paris surrendered 
to the invaders. On February 26 peace preliminaries were 
settled, France ceding Alsace, except Belfort, and part of 
Lorraine, and agreeing to pay 1,000,000,000 francs as war 
indemnity. During the first week of February elections were 
held and a new Assembly of 653 members was chosen, which 
convened at Bordeau on the twelfth and on the seventeenth 
chose M. Thiers President, who named an able ministry. 
When Paris surrendered the soldiers of the National Guard 
were allowed to retain their arms. After the terms of peace 
had been accepted the old turbulence of the Parisian mob again 
manifested itself, it rose in revolt against the government, and 
the National Guard joined forces with it. A bloody conflict 
followed, but this time France dictated to Paris, not Paris to 
France. For once the government supported by the provinces 
was able to force the turbulent city to submit, though not 
without much bloodshed and many barbarities, all too similar 
to those of the reign of terror. 

The government drifted without the adoption of a definite 
constitution. The Assembly, which had moved from Bor- 
deaux to Versailles, was monarchically inclined, but legitimists, 
Orleanists and imperialists were not able to combine. In May 
1873, the Thiers government sustained a defeat in the As- 
sembly, as a result of which Thiers resigned. Marshal 
McMahon was elected to succeed him, and at the session which 
began in November 1873 his powers were prolonged for seven 
years. The matter of settling the constitution dragged on 
till Feb. 25, 1875, when the proposition was finally carried by 
a majority of only one vote, that "the President of the Re- 
public is elected by an absolute majority of votes, by the 
Senate and Chamber of Deputies united in National Assembly. 
He is appointed for seven years, and is eligible for reelection," 
and also that the power of dissolving the Chamber should be 
granted to the President of the Republic. A Senate was 
created consisting of three hundred members, not under forty 
years of age, one third to be chosen every three years, with 



654 EVOLUTION OF GOVERNMENTS AND LAWS 

powers equal to those of the Chamber of Deputies except in 
matters of finance. The Senate was made a court for the 
trial of the President and ministers in case of impeachment. 
The Chamber was elected by universal suffrage, and had 
power to propose amendments to the constitution, which must 
be adopted by both houses. During McMahon's term no re- 
vision was allowed unless proposed by him. The President 
was the executive with power to appoint civil and military 
executive officers, nominate the Council of State, dissolve the 
Chamber of Deputies at any time with the consent of the 
Senate, and to be responsible only for treason. The ministers 
were made responsible individually and collectively to the 
Chambers. Thus the existing republic was established. The 
assembly ended its existence on March 7, 1876. The elections 
which ensued resulted in a large Republican majority. On 
June 25, 1877, owing to a controversy between the President 
afid Chamber of Deputies over the Ministry, the Chamber was 
dissolved and an election ordered. The result was an in- 
creased Republican majority. A ministry still out of harmony 
with the majority having been named by the President, com- 
posed of persons not members of the Chamber, a resolution 
passed that body to "hold no relations with this Ministry," 
and the Chamber refused to vote the Budget. The President 
found it necessary to yield. In January 1879 he came in con- 
flict with the ministry over army appointments, which he al- 
lowed to continue longer than the legal limit, and the President 
resigned. Jules Grevy was thereupon elected by the two 
Chambers assembled in congress as his successor. Since the 
establishment of the Republic the energies of government have 
been directed more than ever before toward the development 
of an orderly system, based on the will of the people. Under 
the law of 1885 the representation is on the basis of one rep- 
resentative for each department and an additional one for 
every 70,000 or fraction thereof of population, and the depu- 
ties are chosen by universal suffrage. The Senate consists of 
three hundred members, one-fourth of whom were at first 
chosen for life by the Assembly, and each vacancy among 
these to be filled by the Senate. The remainder are chosen 



FRANCE 655 

for nine years by special bodies in each department and in the 
colonies, a third of the number being renewed every three 
years. The President receives a salary of 600,000 francs per 
year and an allowance for expenses of 162,400 francs. Sena- 
tors and deputies receive 9,000 francs per year. The allow- 
ance is not large compared with those to past kings and 
emperors, who were granted 12,000,000 to Louis Philippe, 
32,000,000 to Louis XVIII and his family, and 25,000,000 
besides many special revenues to Napoleon III. At the head 
of the executive department is the president, with a cabinet 
of nine ministers, namely, of justice and keeper of the seals, 
foreign affairs, interior, finance, war, marine and colonies, — 
instruction, ecclesiastical affairs and fine arts, — agriculture 
and commerce, and public works. These ministers are ap- 
pointed by the president, but responsible for their acts to the 
chambers. Aside from the responsible executive and legis- 
lative departments of the government there is a Council of 
State, whose business it is to give advice on projects of law 
proposed by the executive or the chambers and on adminis- 
trative regulations and by-laws. It also exercises jurisdic- 
tion over administrative officers. All disputes arising in 
matters of administration and all complaints against admin- 
istrative officers are cognizable by the Council, whose decision 
is final. The composition of the Council is a president and 
vice-president, twenty-two councillors in ordinary service and 
fifteen extraordinary, twenty-four masters cf requests, twenty 
auditors of the first class and ten of the second, a general 
secretary and a secretary du contentieux. The auditors are 
appointed after competitive examination, the ordinary coun- 
cillors by the chamber of deputies and the others by the presi- 
dent. For administrative purposes France is now divided 
into eighty-seven departments, subdivided into three hundred 
sixty-two arrondissements, 2,865 cantons and about 30,000 
communes. The chief executive officer of each department is 
a prefect appointed by the president, and of each arrondisse- 
ment a sub-prefect. A prefect is charged with the mainte- 
nance of order, and for that purpose is at the head of the 
police and may summon the military force; he superintends 



6$6 EVOLUTION OF GOVERNMENTS AND LAWS 

the collection of taxes, issues local decrees, appoints and dis- 
misses his agents and is charged with the duty of executing 
the orders of the government. There is also in each depart- 
ment a general council elected by universal suffrage, and a 
council of prefecture nominated by the executive. The busi- 
ness of the councils is to assess taxes, manage local property, 
roads, railways, canals, charitable institutions and other mat- 
ters of local interest, decide legal questions and advise the 
prefect when he so requests. They are also designed to place 
a check on any attempt at usurpation of power, and in case of 
a coup d'etat they must immediately assemble and choose mem- 
bers of a new assembly. The duties of the sub-prefect corre- 
spond in the arrondissement with those of the prefect in the 
department, and he is assisted by a council of the arrondisse- 
ment, to which each canton elects a member. 

The commune is the administrative unit, with a mayor at 
its head assisted by deputy mayors, varying in number ac- 
cording to population. In the large towns the mayors are 
named by the government from the members of the municipal 
council elected by the people. This council has powers simi- 
lar to those of the departments. The mayors are registrars 
of births, marriages and deaths. In every canton there is a 
commissary of police, who acts under direction of the mayor. 
In towns of less than 6,000 inhabitants he is chosen by the 
people, and in larger ones appointed by the president. 

At the foot of the judicial system is a judge de paix, judge 
of the peace, in each canton with jurisdiction in civil causes 
involving 200 francs or less and in criminal causes where the 
fine cannot exceed fifteen francs. An appeal lies from judg- 
ments for over 100 francs. In every arrondissement is a 
primary court of general original jurisdiction in civil cases. 
An appeal lies to the court of appeals from a judgment for 
more than 1,500 francs. There are twenty-six courts of 
appeals, which are located at certain chief towns. There are 
also tribunals of commerce, whose judges are chosen from 
the merchants by themselves, in the principal cities. Their 
decisions in cases involving over 1,500 francs are also subject 
to appeal. For offenses next above the jurisdiction of judges 



FRANCE 657 

of the peace there is a special section of the tribunals of first 
instance, called the tribunal correctionnel, to which appeals 
lie from the judge of the peace, and its judgments are subject 
to revision by the court of appeals. For the trial of felonies 
there is the cour d } assises, consisting of three judges and 
twelve jurors. These courts sit in each chief town in the 
department once in three months. In criminal cases a private 
preliminary inquiry is conducted by a judge d' instruction, who 
either ends the proceeding by an order of non-lieu or passes 
the case over to the court, to be thereafter conducted by the 
public prosecutor. At the head of the entire judicial system 
stands the Court of Cassation, composed of three divisions 
chambre des requetes, chambre civile and chambre criminelle. 
It reviews the proceedings of the other courts, which are ap- 
pealed to it, and corrects errors of law, but does not review the 
findings of fact. When a cause is reversed, it sends it for a 
new trial to such court as it thinks fit. 

There are also military tribunals, maritime tribunals and 
councils of discipline for lawyers and other professions. An 
important institution is the cour des comptes, consisting of 
three chambers with a president in chief and a president of 
each chamber, a general procurator, a chief greffier, 102 coun- 
cillors, twenty auditors, and eighty-one clerks, which super- 
vises the accounts of all government officials. One of the 
chief functions of the juge de paix is to bring parties to an 
agreement before suit, and no suit can be brought in the 
courts of first instance till he 'has made an unsuccessful effort 
to bring the parties to an agreement. 

The history of France suggests the question why despot- 
isms have lasted so long and republican forms of government 
proven so short-lived. Nowhere else have higher ideals of 
the relations of man found expression than in France during 
the revolution and prior to the advent of Napoleon, yet the 
republic vanished and the empire followed, supported by the 
people before whom such high ideals had but just been pro- 
claimed. Little of good existed in the system of Louis XIV, 
yet his despotism endured to be continued under his succes- 
sors for the greater part of a century. His was a system of 



658 EVOLUTION OF GOVERNMENTS AND LAWS 

extorting from the great multitude the major part of their 
earnings to waste it on idle courtiers or in wars for the glory 
of the king. Not only were the multitude deprived of the 
products of their labors through theories of land tenure and 
taxation, but they were deprived of all access to the great 
store of knowledge which is at all times the treasure of 
greatest value. It is difficult to point out any benefit which 
the Bourbon dynasty conferred on the common people, save 
a little restraint from harming one another. It is difficult to 
point out moral qualities in the king or his courtiers which 
commended them to the support of the people. What then 
influenced the multitude to submit to his authority? They 
and their ancestors had been educated through many centuries 
to do so. The doctrine of the divine right of kings to rule and 
that their acts as rulers, however lacking in moral quality, 
were right and not open to criticism, had been taught, not 
only by state officials of all classes, but by the clergy, who 
came in close contact with the multitude. A great system had 
been built, to which all classes had become accustomed. In 
matters of religion the multitude looked to the clergy for 
guidance. In matters of state the king was all powerful. 
The great toiling multitude of peasants were too ignorant 
and too poor to either appreciate the injustice they endured 
or make any concerted effort to relieve themselves of it. The 
mechanics and laborers in the cities were a little better in- 
formed, but still without organization or well defined common 
purposes. The so-called higher classes, those who did not 
work but profited ;from the prevailing conditions, had most 
knowledge of the system under which they lived and least in- 
clination to change it. The great landholder appreciated the 
advantages he derived from the system of land tenure, which 
made his tenants his servants. The courtier rejoiced in the 
system which squeezed revenue from the impoverished multi- 
tude, for the greater the sum collected the more there was 
for the king to lavish on unworthy favorites. The courtiers 
looked to the king for their incomes and knew that favors 
were only to be gained by subserviency to his will and pleas- 
ing his vanity. Thus at the court of France the art of pleas- 



FRANCE 659 

ing came to be studied as of first importance with little less 
than oriental servility toward the monarch. The clergy as a 
class found it to their interest to uphold the prevailing sys- 
tem, because it protected them in their vast privileges. 
Whence then came the impulse of the revolution? From the 
scholars and thinkers, from those who sought truth rather 
than personal advancement, from men in whatever station in 
life who had consciences keen enough to be moved by the 
abuses of the times and sufficient discernment to comprehend 
them. 

The great schools were centers of advanced investigation. 
The study of the learning of the Greeks and Romans neces- 
sarily carried with it knowledge of their political ideas, and 
when a great mind like that of Montesquieu proceeded to 
analyze the prevailing system, he could do no less than con- 
demn the moral basis of it. The art of printing had come to 
aid in the preservation of knowledge and the dissemination 
of ideas, and while rigid censorship of all publications was 
maintained, works like Montesquieu's Spirit of Laws, believed 
not inimical to monarchical institutions, produced profound 
effects on the minds of students. The church too ifurnished 
its quota of reformers. Not all the clergy were content with 
mere ritual and revenue. Many sought the real meaning of 
the religion they professed to teach, and perceived how ut- 
terly wanting in Christian fraternity was the despotism under 
which they lived. The spirit of brotherly love and self-deny- 
ing helpfulness to others, which pervades the teachings of 
Christ, was altogether wanting in the court and among most 
of the higher clergy, but there were many in the more humble 
stations, who took the true spirit of Christ's teaching to heart 
and sought practical application of them. 

When Louis XVI convened the States-General for the first 
time in 175 years to aid him in his financial difficulties, he 
brought together moral forces which had been gaining strength 
through those years, with which his government was un- 
acquainted. The abuses oi the kingly government were per- 
ceived and condemned, and the true principles which should 
govern the state were proclaimed. No representative bodies 



660 EVOLUTION OF GOVERNMENTS AND LAWS 

have ever formulated better statements of the true purposes 
of government than those which carried on their deliberations 
during the stormy period of the revolution. The formula of 
"Liberty, equality, fraternity," caught the hearts of the multi- 
tude and was approved by the consciences of many who had 
profited from the old regime. How then came it 'that, instead 
of an era of real good will and fraternity among men, a 
reign of blood and terror followed? Surely the poison did 
not inhere in the principles advanced, but rather in the lack 
of general understanding of them and inability to suddenly 
substitute a just system for one of arbitrary power. It is one 
thing to lay down the fundamental principles on which all 
governments and laws should be founded, and quite another 
thing to perfect a system of organized society, which shall be 
able to enforce them in spite of the opposition of the selfish 
and cunning. Not only is it necessary to formulate just 
principles as the basis of the social structure, but also to place 
the enforcement of them in hands that both can and will be 
just and do right. The great multitude were accustomed to 
stand in awe of the king and of the great men of his court; 
they were unaccustomed to participation in the selection of 
the men who should direct public affairs; they were ignorant 
of state affairs and of the practical methods by which one class 
of officials may be made to check the abuses of another. They 
were accustomed to the abuses of unrestrained power, and 
the first impulse naturally was to overthrow the king and his 
courtiers who had oppressed them. If the necessity for doing 
so be conceded, it was but the lesser task. The far more diffi- 
cult one of constructing a new and better system for the man- 
agement of public affairs remained. This new system must 
be fitted to the then existing society with its inherited ideas 
and prejudices. The leaders of the revolution made the grand 
mistake o;f assuming that a system founded on lofty ideals 
could be made readily acceptable to a nation whose leading 
spirits were bitterly hostile to it, and in which a vast majority 
were too ignorant to form definite opinions or to give ex- 
pression to their wishes. The government did not fit the 
people. 



FRANCE 661 

In a despotism the habit of obedience to the established 
authority furnishes the bond which maintains social order. 
In a republic there must be a feeling of general confidence in 
the moral purposes of those placed in power, and a prevailing 
disposition to tolerate sentiments honestly entertained, no 
matter how erroneous they may appear. The leaders of the 
opposing political factions soon made the fatal mistake of 
imputing bad motives to each other, and then of indulging in 
threats. The reign of terror was preceded by mutual distrust 
and wild threatenings. The talk of intemperate leaders pre- 
pared the ground for the guillotine. If statesmen could be 
made to know that in morals the crime of advocating war 
and wholesale slaughter is far greater than that of partici- 
pation in it by those who become soldiers from a sense of 
duty, there might be hope for the peace of the world. In 
France there was distrust by one faction of another, then 
threatenings then bloody butcheries. The principle was simi- 
lar to that on which the more excusable wars come about, 
mutual distrust, fear, hatred and then open violence. The 
wars instituted by rulers, merely to gratify their ambitions, 
have been far more numerous and their authors far more 
criminal. The most pernicious man in public affairs is he who 
advocates violence either between factions at home or with a 
foreign power. Though in a defensive war for the preserva- 
tion of the homes of the people against either a foreign in- 
vader or a domestic oppressor the noblest qualities of courage 
and self-sacrifice for the good of others have often been 
displayed, the ordinary business of the soldier is to fight, 
kill and make desolate. War is always brutalizing and 
demoralizing. 

There were leaders of the revolution who did not teach 
peace, concord and mutual confidence, without which there 
cannot be liberty, equality and fraternity, but sowed seeds of 
dissension and advocated bloodshed as a remedy for social 
ills. Here was the mistake which rendered a republic impos- 
sible in their time, ifor the bloody military spirit naturally and 
usually leads to a military despotism. Napoleon was the in- 
carnation of the blood v ideals of those who condemned their 



662 EVOLUTION OF GOVERNMENTS AND LAWS 

countrymen to the guillotine. His hypocritical professions of 
devotion to popular rights and hatred of kings and tyrants 
caught the fancy of the multitude and blinded them to his real 
qualities and purposes. The ideals of the great leaders of the 
assembly and convention, though generations in advance of 
the people, were not wholly lost however. Some immediate 
advantages resulted. The first and most important perhaps of 
the material gains came from the breaking up of the great 
estates of the nobility and a vast increase in the number of 
independent peasant proprietors. The extension of the edu- 
cational system so as to greatly increase the number of chil- 
dren taught was perhaps of equal or even greater permanent 
value, and the propagation of fundamental principles of jus- 
tice and human rights, though for the time productive of 
many ills, exercised a profound influence for future good not 
only in France but throughout Europe. Eighty years later 
these principles had become so generally understood and rec- 
ognized that a republic was established and has since been 
successfully maintained. 

France is to be congratulated, not only on the great progress 
made within the last century, but also on the possession of 
the high ideals of the revolution, which still stimulate to 
continued improvement. 

Authorities 

Martin: History of France. 

Guizot: History of France. 

Taine: French Revolution. 

Taine: The Ancient Regime. 

Thiers : Consulate and Empire of Napoleon. 

Brissaud : History of Private French Law. 



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